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REPORTS 


OF 


DECISIONS  IN  PROBATE 


BT 


JAMES  V.  COFFEY, 

JUDGE  OP  THE  SUPERIOR  COURT, 


IN   AND   FOR   THE 

CITY  AND  COUNTY  OF  SAN  FRANCISCO,  STATE  OF 

CALIFORNIA. 


REPORTED   AND  ^ANNOTATED  BY 

PETER  Y.  ROSS  AND  JEREMIAH  V.  COFFEY, 

Of  the   San  Francisco  Bar. 


VOLUME   ONE. 


SAN  FRANCISCO: 

BANCROFT-WHITNEY  COMPANY, 

Law  Publishees  and  Law  Booksellers. 

1908. 


s 

c% 


Copyriglit,  1908. 

BY 

JEREMIAH  VINCENT  COFFEY. 


San  Francisco: 

The  Filmes  Brothers  Electrotype  Company, 

Typographers  and  Stereotypers. 


PREFACE. 


Probate  law,  under  the  ancient  English  practice,  was  a(i- 
ministered  in  three  different  tribunals,  some  matters  being 
cognizable  by  the  common-law  courts,  some  by  the  ecclesiasti- 
cal courts,  and  still  others  by  the  chancery  courts.  This  obvi- 
ously awkward  system  never  obtained  in  all  its  fullness  in 
America,  for  the  ecclesiastical  courts  did  not  secure  a  foot- 
hold on  our  soil.  But  courts  of  equity,  in  the  early  history 
of  American  jurisprudence,  assumed  to  exercise  probate  pow- 
ers to  a  very  considerable  extent,  and  in  many  states  of  the 
Union  they  still  appear  to  retain  some  vestige  of  this  author- 
ity. The  general  tendency,  however,  has  been  to  concentrate 
all  probate  powers  in  a  single,  common-law  tribunal,  saving 
to  equity  only  a  revisory  function  to  grant  relief  from  orders 
and  decrees  in  probate  in  case  of  fraud,  mistake,  or  other 
ground  of  equitable  intervention ;  and  this  system,  whereby 
one  court  has  exclusive  original  jurisdiction  in  all  matters 
touching  the  administration  of  estates  of  deceased  and  in- 
competent persons,  and  also  the  guardianship  of  minors  and 
incompetents,  now  generally  prevails  in  the  western  com- 
monwealths. 

The  California  constitution  of  1849  clothed  the  county 
judge  in  each  county  with  probate  powers,  and  from  time  to 
time  thereafter  the  legislature  enacted  statutes  regulating  the 
practice  in  probate.  By  an  amendment  to  the  constitution 
in  1862,  and  an  enactment  of  the  legislature  the  year  follow- 
ing, a  separate  probate  court  was  created  in  San  Francisco, 
which  superseded  the  jurisdiction  of  the  county  judge  in  pro- 
bate proceedings  in  that  city  and  county.  With  this  single 
exception  the  county  judges  throughout  the  state  continued 
to  exercise  probate  functions  until  the  constitution  of  1879 
went  into  operation. 

(iii) 


778631 


iv  Preface. 

By  the  constitution  of  1879,  the  probate  and  county  courts 
were  abolished,  and  jurisdiction  of  all  probate  matters  was 
vested  in  the  superior  courts  throughout  the  state.  This  con- 
stitution went  into  effect  on  the  first  day  of  January,  1880. 
In  San  Francisco  it  provided  for  twelve  judges  and  twelve 
departments  of  the  superior  court;  and  the  original  appor- 
tionment of  judicial  business  among  these  departments 
was  as  follows:  To  departments  one  to  eight  were  assigned 
ordinary  civil  causes;  to  department  nine,  probate  matters; 
to  department  ten,  insolvency  and  special  proceedings ;  and 
to  departments  eleven  ajid  twelve,  criminal  cases.  This  ap- 
portionment has  been  modified  more  or  less  from  time  to 
time;  but  not  so  far  as  to  encroach  upon  department  nine  as 
a  probate  forum.  While  a  considerable  amount  of  probate 
business,  especially  in  recent  years,  has  been  assigned  to 
other  departments,  practically  no  business  other  than  pro- 
bate has  ever  been  assigned  to  department  nine.  Therefore 
this  department  has  now  for  nearly  thirty  years  been  dis- 
tinctly the  probate  court  in  the  city  and  county  of  San  Fran- 
cisco. 

In  the  formative  period  of  this  department  it  was  argued, 
and  with  no  little  plausibility,  that  a  judge  of  the  superior 
court  sitting  in  probate  could  wield  the  powers  of  a  court 
of  general  jurisdiction ;  that  he  could,  for  example,  try  dis- 
puted titles  to  property,  and  administer  general  equitable 
remedies.  But  it  has  long  since  become  settled  doctrine  that 
the  probate  jurisdiction  of  the  superior  court  is  a  jurisdic- 
tion separate  and  distinct  from  its  jurisdiction  in  ordinary 
civil  actions.  Hence,  in  an  action  of  ejectment  by  an  admin- 
istrator, the  superior  court  has  no  power  to  set  aside  the  land 
in  controvers}'-  as  a  probate  homestead;  this  can  be  done  only 
by  the  superior  court  while  sitting  as  a  court  of  probate.  On 
the  other  hand,  when  acting  as  a  probate  court,  the  superior 
court  ordinarily  cannot  determine  disputes  involving  the  title 
to  real  estate.  True,  a  superior  judge,  while  sitting  in  pro- 
bate, may  properly  inquire  into  the  real  ownership  of  prop- 
erty under  some  circumstances,  as  when  it  is  necessary  to 
determine  whether  it  shall  be  inventoried  as  part  of  an  estate 
in  process  of  administration;  but  the  inquiry  is  not  pursued 


Preface.  -  v 

for  the  purpose  finally  to  determine  title.  And  he  may  ex- 
ercise equity  powers  incidentally  necessary  to  a  complete  ad- 
ministration of  the  estate,  but  he  does  not,  when  so  doing, 
exercise  the  general  jurisdiction  of  a  court  of  chancery. 
Hence  the  superior  court,  on  its  probate  side,  is,  in  a  sense,  a 
court  of  limited  jurisdiction,  somewhat  the  same  as  was  the 
probate  court  which  it  has  superseded.  But  of  matters  prop- 
erly cognizable  in  the  probate  forum  it  has  exclusive  orig- 
inal jurisdiction.  It  shares  none  of  this  jurisdiction  with  any 
other  tribunal  as  does  the  probate  court  of  some  states,  and 
even  as  formerly  did  the  probate  court  of  California ;  but  ad- 
ministers, in  the  first  instance,  all  matters  touching  the  ad- 
ministration of  the  estates  of  deceased  persons,  and  all  mat- 
ters pertaining  to  the  guardianship  of  the  estates  and  persons 
of  minors  and  incompetents.  Moreover,  the  procedure  on  the 
probate  side  of  the  superior  court,  except  so  far  as  expressly 
declared  otherwise  by  statute,  is  essentially  the  same  as  that  of 
the  superior  court  in  trying  ordinary  civil  actions;  and  the 
orders  and  decrees  of  the  superior  court,  while  sitting  in  pro- 
bate, are  entitled  to  the  same  favorable  intendments  and  pre- 
sumptions commonly  accorded  the  orders  and  decrees  of  courts 
of  general  jurisdiction.  It  is  therefore  apparent  that  the  pro- 
bate court  in  California  is  not  a  court  of  limited  jurisdiction, 
in  the  proper  sense  of  that  term,  notwithstanding  it  is  often  so 
styled.  Neither  is  it  a  statutory  tribunal.  It  derives  its  au- 
thority from  the  constitution.  The  proceedings  in  probate, 
however,  are  purely  statutory;  and  the  rule  of  the  statutes, 
in  so  far  as  they  furnish  any,  must  be  followed  before  re- 
sorting for  guidance  to  the  principles  of  the  common  law. 

After  the  probate  court  of  San  Francisco  came  into  exist- 
ence in  1863,  as  indicated  in  preceding  paragraphs,  Hon. 
Maurice  C.  Blake  became  the  first  probate  judge,  acting  as 
such  from  January  1,  1864,  to  December  31,  1867.  Hon. 
Selden  S.  Wright  succeeded  him,  holding  the  office  until  De- 
cember 31,  1871.  From  January  1,  1872,  until  December  31, 
1879,  Hon.  Milton  II.  Myrick   presided  over  the  court. 

When  the  superior  court  was  created  by  the  constitution 
of  1879,  the  Hon.  John  F.  Finn  was  the  first  judge  to  pre- 
side in  department  nine,  the  probate  department.     This  he 


vi  .  Preface. 

did  from  January  1,  1880,  to  September  1,  1883,  when  he  ex- 
changed departments  with  the  Hon.  James  V.  Coffey  (then 
presiding  in  department  three),  and  the  latter  has  presided 
continuously  in  department  nine  to  the  present  time.  Judge 
Coffey  has  therefore  presided  over  the  probate  department 
of  the  superior  court  in  San  Francisco  for  over  a  quarter  of 
a  century. 

Naturally  Judge  Coffey's  decisions  have  been  eagerly 
sought  by  members  of  the  bar,  and  consequently  many  of  them 
have,  in  one  form  or  another,  been  published  from  time  to  time. 
But  nothing  like  a  complete  publication  of  his  works  has  been 
attempted  until  now,  when  his  opinions  are  sufficient  in  num- 
ber to  fill  not  less  than  five  volumes,  they  will  be  given  to  the 
world  in  full. 

It  has  been  thought  that  the  practical  utility  of  these  re- 
ports would  be  increased  by  a  system  of  annotation.  There- 
fore the  editor  has  appended  notes,  some  of  them  of  quite  an 
extended  character,  to  many  of  the  decisions.  It  will  of 
course  be  understood  that  Judge  Coffey  is  in  no  wise  responsi- 
ble for  any  statement  in  these  annotations,  and  that  they  have 
not  the  authority  of  judicial  pronouncement. 

P.  V.  ROSS. 

San  Francisco,  December,  1908. 


TABLE  OF  CASES. 


Page 
Armstrong,  Estate  of 157 

Blythe,  Estate  of 110,115 

Chittenden,  Estate  of 1 

Curtis,  Estate  of 533 

Danneker,   Guardianship   of 4 

Doe,  Estate  of 54 

Donahue,  Estate  of 186 

Fay,  Estate  of 428 

Fisher,  Estate  of 97 

Fitzpatrick,  Estate  of 117 

Fleishman,  Estate  of 18 

Gibson,  Estate  of 9 

Green,  Estate  of 444 

Hansen,  Guardianship  of 182 

Hayes,  Estate  of 551 

Held,  Estate  of 206 

Hill,  Estate  of 380t 

Ingram,  Estate  of 222 

Ingram,  Matter  of 137 

Jennings,  Estate  of 155 

Lane,  Estate  of 88 

Love,  Estate  of 537 

Lund,  Estate  of 152 

Lynch,  Estate  of 140 

Maxwell,  Estate  of 126,  135,  145 

McGarrity,  Guardianship  of 200 

McGovern,  Estate  of 150 

McDougal,  Estate  of 109,  456 

McLaughlin,  Estate  of 80,  257 

Murphy,  Estate  of 12 

Murphy,  Guardianship  of 107 

Neustadt,  Estate  of 95 

(vii) 


viii  Table  of  Cases. 


Page 

Partridge,  Estate  of 208 

Pickett,  Estate  of 93 

Eicaud,  Estate  of 212,  220 

Eiddle,  Estate  of 215 

Kothschild,  Estate  of 167 

Scott,  Estate  of 271,  368 

Sealy,  Estate  of 90 

Shillaber,  Estate  of 101,  120 

Skar,  Estate  of 405 

Smith,  Estate  and  Guardianship  of o  . .  .  169 

Solomon,  Estate  of . 85 

Tate,  Estate  of 217 

Tiffany,  Estate  of 478 

Traylor,  Estate  of 164,  252 

Treweek,  Estate  of   , 132 

Wallace,  Estate  of 118 

Whalen,   Estate   of    202 

White,  Estate  and  Guardianship  of 128 

Zimmer,  Estate  and  Guardianship  of 142 


TABLE  OF  CASES  CITED. 


Page 

Abila  V.  Burnett,  33  Cal.   659 2 

Amber  v.  Weischaar,  74  111.  110 19 

American  Bible  Co.  v.  Price,  3  West.  Eep.  69 497 

American  Seaman's  Friend  Soc.  v.  Hopper,  33  N.  Y.  619 497,  520 

Anthony  v.  Dunlap,  8  Cal.  26 108 

Attorney  General  v.  Harley,  5  Russ.  173 254 

Bailey  v.  Bailey,  97  N.  Y.  467 67,  70 

Ballentine,  Estate  of,  45  Cal.  696,  699 128,  218,  453,  552 

Bank  of  Ukiah  y.  Eice,  143  Cal.  270 420,  422 

Barf ord.  Ex  parte,  8  Cox  C.  C.  405 177 

Bates  V.  Bates,  97  Mass.  395 455 

Behrens,  Estate  of,  130  Cal.  416 429 

Billings,  Estate  of,  64  Cal.  427   429 

Black,  Estate  of,  Myr.  24-31 229,  238,  402,  404 

Boland,  Estate  of,  43  Cal.  643 95,  454,  553,  554 

Boldry  v.  Parris,  2  Cush.  433 244 

Bond  V.  Sewell,  3  Burr.   1773 22 

Bowman,  In  re,  69  Cal.  244 453 

Broderick  v.  Broderick,  1  P.  Wms.  239,  4  Vin.  Abr.  534 21 

Brooks  V.  Duffell,  23  Ga.  441 22 

Burmester   v.   Orth,   5   Redf .   259 186 

Burton,  Estate  of,  63  Cal.  36 552 

Busse,  Estate  of,  35  Cal.  310 453 

Carpenter,  Estate  of,  94  Cal.  407 326 

Case  V.  Dennison,  9  R.  I.  88 535 

Casey,  Ex  parte,  71  Cal.  269 537 

Chapsky  v.  Wood,  26  Kan.   651 174 

Children's  Aid  Soc.  v.  Loveridge,  70  N.  Y.  387 237,  404 

Clapp  V.  Fullerton,  34  N.  Y.  190 228,  334,  366 

Clark  V.   Ellis,  9  Or.   147    366 

Clark  V.  Ward,  1  Bro.  P.  C.  137 21 

Clif t  V.  Moses,  116  N.  Y.  157 424 

Cohn,  Estate  of,  55  Cal.  193 134 

Coit  V.  Patchen,  77  N.  Y.  537 366 

Cole  V.  Superior  Court,  63  Cal.  86 154 

Cole,  Will  of,  49  Wis.  181 283,  327,  334 

Collier  v.  Munn,  41  N.  Y.  143 548 

(ix) 


Table  of  Cases  Cited. 


Page 

Colman's  Case,  3  Curt.   118    .  . : 21 

Comstock  V.  Hadylone  etc.  Soc,  8  Conn.  254 235 

Cotter,  Estate  of,  54  Cal.  217 93,     94 

Cozine  v.  Horn,  1  Bradf .  143 186 

Crittenden,   Estate   of,   Myr.    51 402 

Crooke  v.  County  of  Kings,  97  N.  Y.  427 67,     69 

Cunliffe  v.  Branchker,  L.  E.  3  Ch.  D.  399 66 

Curry  v.  Powers,  70  N.  Y.  217 535 

Daniel  v.  Daniel,  39  Pa.  191 366 

Daniel  v.  Smith,  64  Cal.  346 535,  536 

Dary  v.   Smith,  3  Salk.  395 19 

Davis,  Estate  of,  65  Cal.  309   16 

Davis,  Estate  of,  69  Cal.  458 552 

Davis,  In  re,  69  Cal.  460 453 

Dean  v.  Negley,  41  Pa.  314,  316 507,  519 

Dean  v.  Superior  Court,  63  Cal.  473 137,  262 

Delaney,  Estate  of,  37  Cal.  176 451 

Dew  V.   Clark,  3  Add.   79 361 

Disbrow  's  Estate,  58  Mich.  96 238 

Dixon,  Estate  of,  143  Cal.  511   423 

Dodge  V.  Pond,  23  N.  Y.  69 412,  415,  419 

Dole  V.  Lincoln,  31   Me.  428 535 

Downing  v.   Marshall,   23   N.   Y.   377 67,  68,     70 

Dunphy,  Estate  of,  147  Cal.  95 74 

Eastman,  Estate  of,  60  Cal.  310 10 

Edelen   v.   Hardy,   7   Har.   &   J.   61 24 

Edelston  v.  Spake,  Holt.  222,  Mod.  ^59,  Comb.   156 21 

Ellis'  Case,  2  Curt.  395 21 

Fair,    Estate    of,    132    Cal.    546 408 

Fealey  v.  Eealey,  104  Cal.  360 554 

Fiero  v.  Fiero,  5  Thomp.  &  C.  151 535 

Foster   v.   Mott,    3    Bradf.    409 186 

Fuentes   v.    Gaines,   25    La.   Ann.    85 432 

Gardiner    v.    Gardiner,    34   N.    Y.    155    238 

Garraud,  Estate  of,  36  Cal.  278 116 

Garvey  v.  McCue,  3  Eedf.  315 117 

Gasq,  Estate  of,  42  Cal.  288  116 

Gass  V.  Gass,  3  Humph.   278 22 

Gay  V.   Gillilan,  92   Mo.   250 508 

Gold 's  Case,  1  Kirby  (Conn.),  100 212 

Gooch  V.  Gooch,  33  Me.   535 256 

Graham  v.   Graham,   10  Ired.   219    23 

Greenwood   v.   Cline,   7   Or.    28 353 


Table  of  Cases  Cited.  xi 

Page 

Gregg  V.  Bostwick,  33  Gal.  221   451 

Gurnee   v.    Malonej,    38    Cal.    87 2,116,    154 

Hamor  v.  Moore,  8  Ohio  St.  242 535 

Hardwick,  Estate  of,  59  Cal.  292 552 

Hatch  V.  Atkinson,  56  Me.  327 535 

Heffner    v.    Heffner,   48    La.    Ann.    1088 430,431 

Higgins  V.   Higgins,   46   Cal.   265 454 

Hill  V.  Barge,  12  Ala.  695 20 

Hinckley,    Estate    of,    58    Cal.    516 83 

Hogan  V.  Grosvenor,  10  Met.  56 19 

Holley  V.  Chamberlain,  1  Eedf .  333 186 

Hollis,  Ex  parte,  59  Cal.  406 537 

Hoppe   V.    Hoppe,   104   Cal.    94 554 

Home  V.  Home,  9  Ind.  99    366 

Horsf ord  's  Case,  L.  R.  3  Prob.  211 22 

Hudson,  Estate  of,  63  Cal.  454 .' 137,  262 

Hutchinson   v.  McNally,   85   Cal.   619 553 

Jackson   v.   Phillips,   14   Allen,   539 11 

Janes  v.  Throckmorton,  57  Cal.  368 418 

Jones  V.  Tuck,  3  Jones,  202 23 

Julke  V.  Adam,  1  Redf.  456 403 

Keyes  v.  Cyrus,  100  Cal.  325 553 

Killick's   Case,   3    Sw.    &    Tr.    578 22 

King  V.   King,   13   R.   I.   510 424 

Kinne    v.    Kinne,    9    Conn.    104 367 

Lacoste,  Estate   of,  Myr.   68 134 

Lahiff  's  Estate,  In  re,  86  Cal.  151 553 

Lakemeyer,  Estate   of,   135  Cal.   28 429 

Lamb  v.  Girtman,  26  Ga.  629 20,  23 

Lambert's  Lessee  v.  Paine,  3   Cranch,   131 422 

Le  Breton  v.  Cook,  107  Cal.  416 422 

Lee    V.    Lee,    4   McCord    (S.    C),    183 283,367 

Lef evre  v.  Lef evrc,  59  N.  Y.  434 11 

Linden,  Guardianship  of,  Myr.  221 186 

Lord,  Estate  of,  2  West  Coast  Rep.  131 128,  219 

Lord   V.  Lord,   65   Cal.   84    128,  219 

Machell    v.    Temple,    2    Show.    288 21 

Macready   v.   Wilcox,   33    Conn.   321 186 

Maloney  v.  Hefner   (Cal.),  15  Pac.  763 450,  451 

Martin,  Estate  of,  58  Cal.  530 429 

Mawson  v.  Mawson,  50  Cal.  539 128,  218,  554,  555 

Maxwell,  Estate  of,  1  Coffey's  Prob.  132 218 


xii  Table  of  Cases  Cited. 


Page 

Maynard   v.   Vinton,   59   Mich.    139 238 

McCauley,  Estate  of,  50  Cal.  546 128,  218 

McCrea  v.  Haraszthy,  51  Cal.  149 82 

McDowles,  Matter  of,   8   Johns.   328 178 

McElf resh  v.  Guard,  32  Ind.  412 20 

McGrath  v.  Keynolds,  116  Mass.  566 535 

McKinnie  v.  Shaffer,  74  Cal.  614 554 

Metealf  v.   Framingham  Parish,   128   Mass.   370 146 

Meyer   v.   Kinzer,   12    Cal.    252 198 

Miller,  In  re,  4  Eedf.  304 99 

Miner,    Estate    of,    46    Cal.    564,    572 2,104,125 

Missionary  Soc.  v.  Chapman,  128  Mass.  265 11 

Moore,   Estate   of,   57   Cal.   443 128,  454,  553,  554 

Moore,   Estate   of,   96   Cal.   522 553 

Morgan.  Estate  of,  53  Cal.  243 94 

New  York  Institution    etc.  v.  How,  10  N.  Y.  88 11 

Neil    V.    Neil,    1    Leigh,    6 23 

Noah,  Estate  of,  73  Cal.  583 516 

Nock  V.  Nock,  10  Gratt.  106 20 

Norton  v.  Bazett,  (Dea  &  S.)  5  Am.  Law  Keg.  52 21 

O'Neil  V.  Murray,  4  Eedf.  318 403 

Onions  v.  Tyrer,   1  P.  Wms.  343 21 

Orndorff  v.  Hummer,  12  B.  Mon.  619 23 

Page,  Estate  of,  57  Cal.  241 2,  154 

Payne  v.  Treadwell,  16  Cal.  243 198 

Peck  V.  Carey,  27  N.  Y.  9 403 

Pforr,  Estate   of,   144    Cal.    121 412,  415 

Phelan  v.  Smith,  100  Cal.  170 552,  553 

Pool  V.  Gott,  14  Monthly  Law  Eep.   (4  N.  S.)   269 175,  181 

Power  V.  Cassidy,  79  N.  Y.  610 11,  414,  424,  426 

Prevost   V.    Gratz,   6   Wheat.   481 163 

Pritchett,    Estate    of,    51    Cal.    568 141 

Pryer  v.  Clapp,  1  Dem.   (N.  Y.)    390 263 

Eand,  Estate  of,  61   Cal.  468 429 

Eedfield,  Estate  of,  116    Cal.  637 298,  326 

Eeed    v.    Eoberts,    26    Ga.    294 22 

Eex   V.  Smith,  2  Strange,  982 178 

Eeynolds  v.  Eeynolds,  1  Spear,  253 23 

Keynolds    v.    Root,    62    Barb.    250 238,501 

Eicaud,  Estate  of,  Myr.  158 198 

Eobertson,   Succession  of,  49   La.   Ann.   868 430 

Eobinson    v.    King,    6    Ga.    539 22 

Eough  V.  Simmons,  65  Cal.  227 198 

Eussell  V.  Falls,  3  Har.  &  McH.  457 24 


Table  of  Cases  Cited.  xiii 

Page 

Saunder  's   Appeal,   54   Conn.    108 238 

Scarrit,  In  re,  76  Mo.  593 179 

Schadt   V.   Heppe,   45   Cal.    433 552 

Schmidt,  Estate  of,  94  Cal.  334 , 554 

Sheehy  v.  Miles,  93  Cal.  288 554 

Shires   v.    Glasscock,    2    Salk.    688 19 

Simons,   Estate   of,   43   Cal.   548 2,  99,  116 

Smith,   Estate   of,   53    Cal.    208 134 

Smith  V.    Smith,    12   Cal.   224 198 

St.  Luke's  Home  v.  Association  etc.,  52  N.  Y.  191 11 

State  V.  Libbey,  44  N.  H.   321 178 

Stevens  v.  Vancleava,  4  Wash.  C.  C.  262 367 

Stuart    V.    Allen,    16    Cal.    504 116 

Sulzberger   v.    Sulzberger,   50   Cal.   385 453,554 

Taylor,   Estate   of,   Myr.   160 134 

Taylor   v.   Henry,   48    Md.    550 535 

Thorndike   v.   Eice    (Mass.),    14   Law.   Eep.,   N.    S.,    19 177 

Tittel,  Estate  of,  Myr.  12,  16 229,  238,  402 

Todd  V,  Winchelsea,  2  Car.  &  P.— 19 

Tribe   v.   Tribe,    13   Jur.   793,    1   Rob.    775 21 

Trumbull  v.   Gibbons,  22  N.   J.   L.   117 364 

Twine's  Case,  3  Coke  Rep.  82 353 

Vernon    v.    Vernon,    53    N.    Y.    361 146 

Violette   v.   Therrian,   1   Pug.   &  Bus.    (N.   B.)    389 22 

Walkerly,  Estate  of,  108  Cal.  627 420,  421 

Wallace  v.  Harris,  32  Mich.  393 507 

Waterman  v.  Whitney,  11  N.  Y,   165 238 

Watson  V.  Pipes,  32  Miss.  468 20 

White,  Will  of,  121  N.  Y.  412 290 

Wilson,   In   re,   117   Cal.    269 431 

Wittfield    V.    Forster,    124    Cal.    418 72 

Wright  V.  Lewis,  5  Rich.  212 20 

Wright    V.    Monifold,    1    M.    &    S.    294 21 

Wurts  V.  Page,  19  K  J.  Eq.  375 413,  416 


CITATIONS. 


CALIFORNIA. 

Constitution. — Art.  VI,  sec.  5 


137 


CODE  OF  CI^rCL  PROCEDUEE. 


SECTION  PAGE 

338  137 

453  261 

473  127 

1209  134 

1303  82 

1307  281 

1327  262 

1328  262 

1365 88,  89,  109,  110,  169 


1369 
1371 
1374 
1377 
1379 
1383 
1386 
1389 
1411 
1413 
1415 


207 
216 
216 
168 
169 
168 
168 
.216 
92 
207 
104 


1426 109,  110 

1443  211 

1464  460 

1465 128,  219,  452,  454, 

551,  552,  554,  555 

1468  128,  553 


SECTION  PAGE 

1474  552 

1490  196 

1491  196 

1581  98 

1616  16,  98,  99 

1618 16,  106 

1632  549 

1658  195,  197 

1659  197 

1660  197 

1661  197 

1662  195,  198 

1664  195 

1666  134 

1704  81 

1705  82 

1718  100,  116 

1721  134 

1748  143,  177 

1749  143 

1751  175,  185 

1763  387 

1764  387 

1766  387 

1962  134 


CIVIL  CODE. 


SECTION 

40  .. 

138  .. 

197  .. 

246  .., 

253  .  . 


PAGE 

386 

107 

175 

,143,  144,  174,  177,  185 
144 


SECTION 

258  .  . 

689  .  . . 

690  .  .  , 

693  .  . , 

694  .  . 


PAGE 

.  138 

.  78 

.  78 

.  78 

.  78 


(XV) 


XVI 


Citations. 


CIVIL  CODE— Continued. 


SECTION  PAGE 

695 "7,  78 

741  77 

742  77 

767  76 

857  66,  70,  73,  74,  409,  410 

864  411 

871  72 

1147  534 

1149  534,  535 

1262  452 

1270  84,  228,  388 

1272  403 

1276  18,  24,  401 

1277  429,  432 


SECTION  PAGE 

1278  401 

1318  , 253 

1321  147,  375 

1323  147 

1324  147,  253 

1325  147,  149 

1338  412 

1384  554,  555 

1402  554,  555 

1468  554,  555 

1575  233,  403,  404 

2221  73 

2224  137 


SECTION 

1030  .  .  . 
2210  ... 


POLITICAL  CODE. 

SECTION 

2222  ... 


PAGE 
.  152 
.  139 


PAGE 
.  139 


COFFEY'S 
PROBATE  DECISIONS. 


Estate  of  N.  W.  CHITTENDEN,  Deceased. 

[No.  4,783;   decided  February   24,   1887.] 

Executors — Right  to  Counsel  Fees. — The  trust  imposed  upon  an  ex- 
ecutor makes  the  probate  of  the  will  a  part  of  his  duty,  for  which  he 
may  employ  attorneys  and  charge  their  fees   against  the   estate. 

Executors. — The  Fees  of  Attorneys  Employed  by  an  Executor  in 
probating  the  will,  being  a  charge  against  the  testator's  estate,  can  be 
fixed  only  by  the  probate  court. 

Executors — Right  to  Counsel  Fees  In  Procuring  Letters. — Counsel 
fees  incurred  by  an  executor  in  applying  for  letters  are  a  proper 
charge  against  the  estate,  notwithstanding  he  renounces  his  trust  be- 
fore letters  are  issued. 

Executors. — There  is  a  Distinction  Between  Executors  and  Admin- 
istrators. An  executor  is  appointed  by  the  will  to  carry  out  its  pro- 
visions and  the  wishes  of  the  testator,  who  burdens  the  executor  with 
the  trusts  created  by  the  will  and  charges  his  estate  with  the  ex- 
penses necessary  to  carry  out  his  views  as  expressed  in  his  will;  but 
an  administrator  has  no  trust  imposed  upon  him  by  the  decedent,  and 
he  looks  solely  to  the  statute  for  his  duties,  authority,  and  compensa- 
tion. 

Application  for  an  allowance  to  petitioners  for  services 
performed  as  attorneys  for  an  executor,  in  filing  a  petition 
for  the  probate  of  the  will,  and  proceedings  in  connection 
therewith  and  with  the  probate  of  the  instrument.  The  ex- 
ecutor did  not  qualify  for  his  trust,  but  renounced  his  right 
to  letters  upon  or  before  the  hearing  of  the  petition ;  and  this 
was  a  direct  application  to  the  court  by  the  attorne.ys  so  em- 
ployed by  him.     The  administrator  with  the  will  annexed  de- 

Prob.  Dec,  Vol.  I — 1 


2  Coffey's  Probate  Decisions,  Vol.  1. 

murred  to  the  application,   and  the   following   decision   was 
given  on  the  demurrer. 

M.  S.  Eisner,  for  the  demurrer. 

John  M.  Burnett,  for  the  application. 

COFFEY,  J.  This  is  an  application  on  behalf  of  William 
and  George  Leviston  for  counsel  fees  for  services  rendered 
in  probating  the  will  of  the  testator. 

The  demurrer  should  be  overruled.  This  case  is  to  be 
distinguished  from  the  Estate  of  Simmons  (43  Cal.  548), 
decided  in  April,  1872,  Avhich  applies  only  to  an  application 
for  letters  of  administration,  and  refers  to  a  class  of  cases 
where  one  is  seeking  for  his  own  gain  to  exercise  a  privilege. 

There  is  a  distinction  between  executors  and  administra- 
tors. The  executor  is  appointed  by  the  will  to  carry  out  its 
provisions,  under  the  supervision  of  the  court,  and  the  trust 
is  conferred  on  him  by  that  instrument.  It  is  the  duty  of 
an  executor  to  protect  the  beneficiaries  named  in  the  will, 
and  this  he  can  do  in  no  other  way  than  by  offering  it  for 
probate.  If  he  do  not  renounce  the  trust  he  is  bound  to  prove 
the  will,  and  is  not  called  upon  to  do  it  at  his  own  expense. 
To  do  so  properly  he  is  necessarily  obliged  to  employ  coun- 
sel, and  a  counsel  fee  in  that  behalf  is  a  proper  charge  against 
the  estate. 

The  probate  of  the  will  by  the  executor  is  the  performance 
of  a  duty  and  the  fulfillment  of  a  trust,  and  the  payment  of 
attorney's  fees  just  as  necessary  as  that  of  clerk's  fees. 

This  being  a  charge  against  the  estate,  the  judge  sitting  in 
this  department  alone  has  power  to  fix  the  fees:  Gurnee  v. 
Maloney,  38  Cal.  87,  99  Am.  Dec.  352;  Estate  of  Page,  57 
Cal.  241. 

The  executor  is  entitled  to  attorney's  fees  on  probate  of 
will  or  on  contest  of  same:  Abila  v.  Burnett,  33  Cal.  659; 
Estate  of  IVliner,  46  Cal.  564. 

The  executor  only  carries  out  the  wish  and  will  of  the 
testator,  who  has  the  absolute  power  to  make  a  will  and  to 
dispose  of  his  property  as  he  may  choose.     The  testator,  by 


Estate  op  Chittenden.  3 

the  exercise  of  that  power,  burdens  the  executor  with  the 
trusts  created,  and  impliedly  charges  his  own  estate  with 
all  the  costs  and  expenses  necessary  to  carry  out  his  views  as 
exposed  in  his  last  will  and  testament.  To  hold  otherwise 
would  practically  nullify  the  statute  of  wills,  and  prevent 
the  testator  from  disposing  of  his  property  as  he  may  elect, 
or  from  appointing  a  disinterested  trustee  to  carry  out  his 
views. 

Certain  legatees  and  devisees  might  wish  the  will  enforced, 
but  conflicting  interests  and  contentions  might  render  the 
assumption  of.  the  trust  too  burdensome. 

No  one  will  ever  assume  the  arduous  labors  and  responsibili- 
ties of  the  office  of  executor,  when  he  himself  must  pay  from 
his  own  means  for  having  his  muniment  of  title  assured,  when 
nothing  of  benefit  can  accrue  to  him,  even  in  case  of  success. 

The  privilege  of  administration  is  different;  there  the  in- 
testate creates  no  trust  to  be  enforced,  and  burdens  his  es- 
tate with  no  conditions;  he  expresses  no  wish  in  favor  of 
particular  objects,  but  the  party  who  assumes  the  privilege 
is  any  one  of  a  large  number,  and  is  directly  interested,  out- 
side of  his  commissions,  in  taking  charge  of  the  estate;  the 
estate  is  to  be  divided,  and  he  is  a  party  receiving  a  share. 
Further,  his  duties  are  not  as  onerous;  he  has  no  document 
limiting  his  powers  and  authority;  he  has  no  trust  imposed 
upon  him  by  the  will  of  the  intestate;  he  looks  solely  to  the 
statute.  The  duties  of  an  executor  are  regulated  not  only 
by  the  law  but  by  the  will  also ;  he,  as  executor,  has  no  in- 
terest, beyond  his  commissions,  to  stimulate  his  exertions;  as 
executor,  he  can  claim  none  of  the  estate,  it  belongs  to  others. 
The  compensation  of  an  executor  is  the  same  as  that  of  an 
administrator,  l)ut  the  expenses  of  the  former  are  necessarily 
more,  and  his  labors  may  be  harder.  He  cannot  probate 
the  will  himself,  he  nuist  employ  counsel.  No  such  charge 
is  imposed  upon  the  administrator.  There  seems,  therefore, 
to  be  a  clear  distinction  between  the  two  cases. 

Demurrer  overruled;  ten  days  to  answer. 


4  Coffey's  Probate  Decisions,  Vol.  1. 

The  Rule  that  an  Estate  cannot  be  charged  with  the  fees  of  an 
attorney  for  procuring  letters  of  administration,  which  is  announced 
in  Estate  of  Simmons,  43  Cal.  543,  has  been  followed  in  Bowman  v. 
Bowman,  27  Npv.  413,  76  Pac.  634;  Wilbur  v.  Wilbur,  17  Wash.  683, 
50  Pac.  589.  One  appointed  as  administrator,  and  successfully  con- 
testing an  appeal  from  the  order  appointing  him,  was  denied  an  al- 
lowance for  attorney  fees  and  costs  in  Estate  of  Barton,  55  Cal.  87. 


Guardianship  of  LAURA  DANNEKER,  a  Minor. 

[No.  4,344;  decided  March  29,  1887.] 

Guardianship — Custody  and  Welfare  of  Child. — In  appointing  a 
guardian  and  awarding  the  custody  of  a  child,  the  court  is  bound  to 
do  what  in  its  judgment  appears  to  be  for  the  best  interest  of  the 
child  in  respect  to  its  temporal,  its  mental  and  moral  welfare. 

Guardianship. — The  Affection  of  a  Child  for  the  Person  seeking  its 
custody  as  guardian  is  always  given  consideration  by  the  court. 

Guardianship — Social  and  Private  Life  of  Guardian. — It  is  the  duty 
of  the  court  to  inquire  into  the  social  relations  and  private  life  of  a 
person  seeking  to  be  appointed  guardian  of  a  child,  so  far  as  they  may 
affect  the  child's  welfare. 

Evidence — Inference  from  Failure  to  Produce. — The  failure  of  a 
party  to  produce  evidence  within  his  power  to  produce  is  a  circum- 
stance to  be  taken  against  him. 

Record. — Matters  Prejudicial  to  the  Character  of  any  person  will 
be  excluded  from  the  record  when  not  essential  to  a  proper  decision. 

Henry  Vrooman  and  W.  H.  Jordan,  for  the  motion. 

A.  H.  Loughborough,  contra. 

COFFEY,  J.  This  is  a  motion  for  a  new  trial  in  the  mat- 
ter of  Laura  Danneker,  a  minor,  wherein,  upon  the  petition 
of  one  Teresa  Magee,  letters  were  granted  to  her  as  guardian 
of  the  person  of  the  said  minor.  Upon  the  hearing  of  that 
petition  Jacob  Michaelson  appeared  and  opposed  the  issue 
of  such  letters,  but  the  court,  upon  the  conclusion  of  the 
testimony,  granted  the  prayer  of  the  petitioner,  Teresa  Ma- 
gee. The  court  is  now  asked  to  grant  the  motion  of  the 
respondent  to  set  aside  the  decision,  the  findings  and  the 
judgment  therein,   and  for  a  new  trial.     This  motion   has 


Guardianship  op  Danneker.  5 

been  prosecuted  with  great  earnestness  and  evident  convic- 
tion on  the  part  of  counsel  that  the  court  erred  in  its  or- 
iginal conclusion,  and  counsel,  Mr.  Jordan,  in  presenting 
his  argument,  said  that  such  was  the  gravity  of  the  case  to 
the  respondent  and  to  the  ward,  and  so  deep  the  interest  felt 
in  its  final  determination,  that  he  invoked  the  exercise  of 
some  patience  on  the  part  of  the  court  in  reviewing  the  evi- 
dence in  extenso  produced  at  the  trial,  and  in  presenting 
fairly  and  logically  the  reasons  which,  in  his  judgment,  actu- 
ated the  respondent  in  making  the  motion.  The  counsel  argu- 
ing the  motion  for  new  trial  were  not  the  counsel  engaged 
at  the  time  of  the  hearing  of  the  application,  and  on  that  ac- 
count, as  well  as  out  of  consideration  for  their  request,  I 
gave  them  more  than  the  usual  time  to  prepare  their  state- 
ment on  motion  for  new  trial  and  argument;  and,  notwith- 
standing the  pressure  of  other  matters  before  the  court,  have 
bestowed  great  care  upon  the  re-examination  of  the  evidence 
and  the  written  argument  of  the  counsel.  In  this  connection, 
I  may  say  that  this  is  the  uniform  habit  of  this  court  in  all 
cases  of  this  class.  The  court  endeavors  to  try  these  cases 
with  strict  reference  to  the  interest  of  the  child.  In  award- 
ing the  custody  of  a  minor,  or  in  appointing  a  guardian,  the 
court  is  bound  to  do  what,  in  its  judgment,  appears  to  be 
for  the  best  interest  of  the  child  in  respect  to  its  temporal, 
its  mental  and  moral  welfare. 

The  counsel,  at  the  argument,  dwelt  with  great  emphasis 
upon  expressions  found  in  the  oral  opinion  of  the  court,  which 
he  construed  favorably  to  the  respondent,  and  which  he  says 
may  be  presumed  to  reflect  the  impressions  made  upon  the 
mind  of  the  court  by  the  evidence  touching  the  character 
and  fitness  of  the  respondent.  Such  remarks  were  insi^ired 
by  the  reluctance  of  the  court  to  fasten  upon  the  record  mat- 
ter prejudicial  to  the  character  of  any  person,  when  such 
matter  seems  to  be  not  essential  to  the  conclusion.  The 
court  does  not  wish,  unnecessarily,  to  affix  a  stigma  to  the 
character  of  any  person,  and  would  rather  suffer  injustice 
itself  than  perpetrate  it,  and  it  was  with  this  view  that  the 
court,  at  the  original  hearing  (when  the  counsel  now  appear- 
ing for  respondent  was  not  present,   and  had  not  the  op- 


6  Coffey's  Probate  Decisions,  Vol.  1. 

portunity  of  observing  all  that  occurred  in  court),  made  a 
statement  which  it  will  now  repeat,  which  statement  was  pred- 
icated upon  some  injurious  publications  with  regard  to  the 
case  Avhich  were  in  their  nature  sensational  and  outside  of 
the  record,  and  calculated  to  obstruct  the  current  of  justice. 
The  court  then  said  in  a  kindly  manner,  as  it  supposed,  that 
with  reference  to  the  respondent  the  court  was  not  willing 
that  he  should  be  prejudiced  by  any  statement  not  in  the  rec- 
ord. 

Some  statements  obtained  admission  to  the  newspapers 
pending  the  trial  of  the  case,  which  the  court  regretted  to 
see,  and  remarked:  "I  have  no  control  over  newspapers  in 
any  way,  and,  consequently,  I  cannot  control  their  publica- 
tions. I  do  not  wish  anybody  that  comes  into  this  court- 
room to  be  prejudiced  by  circumstances  or  testimony  of  any 
kind  that  is  not  relevant  to  the  issue.  One  of  the  statements 
that  appeared  in  one  of  the  papers  was  that  Mr.  Michaelson 
is  a  gambler.  There  is  not  any  evidence  to  support  that. 
It  was  the  statement  that  was  alleged  to  have  been  made 
by  the  son  of  the  lady  who  kept  the  school  in  Oakland,  which 
was  denied  by  her."  The  same  care  which  the  court  ex- 
ercised in  purifying  the  record  from  any  unnecessary  reflec- 
tion upon  the  character  of  the  respondent,  it  tried  to  main- 
tain in  other  respects  in  commenting  upon  the  evidence  that 
was  before  the  court;  and,  believing  it  had  sufficient  ground 
upon  which  to  found  its  judgment  without  reflecting  upon 
the  personal  character  of  the  respondent,  it  excluded  from 
view,  as  far  as  possible,  allusion  to  anything  that  may  have 
been  testified  to  or  suggested  by  the  evidence  derogatory  to 
his  reputation  with  respect  to  his  relations  to  the  opposite 
sex,  or  as  to  the  character  of  some  of  that  sex  Avith  whom  this 
child  may  have  been,  or  was  liable  to  be,  brought  into  contact. 

As  the  result  of  my  re-examination  of  the  evidence  and 
consideration  of  the  argument  of  the  counsel,  and  of  the 
imputed  errors  of  the  court  committed  during  the  trial  and 
in  the  decision,  I  am  constrained  to  say  that  I  discover  no 
reason  why  I  should  change  my  original  conclusion.  I  may 
repeat,  that,  while  I  have  had  a  great  deal  of  sympathy  for 
the  respondent  in  this  case  on  account  of  the  affection  which 


Guardianship  of  Danneker.  7 

the  child  has  shown  for  him,  and  the  emotion  exhibited  by 
the  respondent,  which  state  of  the  mind  of  the  child  is  al- 
ways considered  by  the  court  in  deciding  these  cases,  I  can- 
not see  wherein  he  has  established  any  right  to  the  legal  cus- 
tody of  the  minor,  and  that  I  think  that  that  custody  should 
be  in  the  hands  of  those  from  whom  it  was  taken  at  the 
time  ]\Irs.  Trendal  received  it.  In  my  opinion,  the  evidence 
shows  that  the  minor,  Laura  Danneker,  was  at  the  time  of 
the  application  a  resident  of  the  city  and  county  of  San 
Francisco ;  that  it  was  and  is  expedient,  and  was  and  is  for 
the  interest  of  the  said  minor,  that  a  guardian  of  her  per- 
son be  appointed;  that  the  petitioner,  Teresa  Magee,  was 
and  is  a  suitable  and  competent  person  to  be  appointed  such 
guardian.  The  residence  of  the  child  was  the  residence  it 
had  at  the  time  it  was  given  to  the  Sisters,  and  at  the  time 
it  was  placed  in  charge  of  Mrs.  Trendal.  The  obligation 
which  Mrs.  Trendal  contracted  when  she  received  the  child 
from  the  Sisters  was  violated  when  she  gave  that  child  to  the 
respondent.  Of  that  fact  I  can  have  no  doubt.  In  order  to 
understand  this  case  fully,  the  whole  of  the  evidence  must  be 
considered,  and  I  am  of  opinion  that,  taken  altogether,  the 
evidence  justifies  the  conclusion  of  the  court. 

One  point  I  desire  to  allude  to  as  considerately  as  pos- 
sible, and  that  is  the  social  relations  of  respondent  during  the 
time  that  the  child  was  in  his  custody.  The  child  was  re- 
ceived by  him  without  the  knowledge,  consent  or  connivance 
of  the  Sisters,  and  in  violation  of  the  agreement  between  them 
and  Mrs.  Trendal.  At  the  time  the  respondent  received  the 
child  he  was  not  a  married  man,  and  his  social  relations,  as 
the  evidence  discloses,  were  not  such  as  are  ordained  by  the 
sanction  of  the  law.  Pending  the  trial,  however,  he  became 
a  married  man.  To  repeat  the  language  of  my  former  opin- 
ion:  "Have  the  changed  relations  of  the  respondent  altered 
the  law  or  the  duty  of  the  court?"  It  is  no  business  of  the 
court,  so  far  as  he  is  personally  concerned,  to  deal  with  his 
relations  to  society  prior  to  that  time;  but  it  is  part  of  the 
duty  of  the  court  to  consider  his  social  relations  as  they  may 
have  aifected  the  child's  welfare,  and  while  upon  him,  as  he 
stands  isolated  from  liis  child,  the  court  is  not  called  upon 


8  Coffey's  Probate  Decisions,  Vol.  1. 

to  pronounce  judgment,  it  has  a  right,  in  awarding  the  cus- 
tody of  a  child,  to  inquire  into  his  private  life.  The  child 
was  at  the  time  of  the  application  nine  years  of  age.  She 
was  brought  into  contact,  into  association,  with  persons  whose 
habits  of  life,  as  developed  by  the  evidence,  were  such  as  if 
not  to  contaminate  her  mind  or  morals,  at  least  to  not  ele- 
vate them,  and  she  certainly  should  not  have  been  brought 
into  such  company.  There  was  another  circumstance  here, 
one  which  necessarily  impressed  the  court  very  strongly. 
That  is  the  fact  that  Mrs.  Wasserman,  after  process  was 
served  upon  her,  and  after  the  testimony  had  shown  that 
she  had  sustained  some  friendly  relations  with  respondent, 
had  absconded.  She  was  a  witness  for  the  applicant,  Teresa 
Magee,  and  summoned  here  in  her  behalf.  So  far  as  the 
court  could  see  she  left  here  after  she  was  served  with  sub- 
poena, and  after  she  had  some  consultation  with  respondent. 
He  saw  her.  It  did  not  transpire  what  conversation  he  had 
with  her,  but  he  did  see  her.  The  law  says  that  whenever 
it  is  in  the  power  of  a  party  to  produce  evidence,  that  is  a 
circumstance  which  shall  be  taken  against  him  whose  fault 
it  is  that  the  evidence  is  not  forthcoming.  I  could  not  ig- 
nore this  fact,  since  the  evidence  which  she  might  have  given 
M^as  of  importance  in  this  case.  It  was  argued  earnestly, 
and  impressed  me  strongly  at  the  time,  that  the  fact  that 
for  so  long  a  period  the  child  was  allowed  to  remain  in  the 
custody  of  the  respondent,  should  be  taken  against  the  ap- 
plicant, Teresa  Magee.  It  was  claimed  that  the  Sisters  lacked 
diligence  in  reclaiming  the  child.  This  was  explained  by 
the  testimony  on  behalf  of  the  applicant,  that  the  Sisters 
did  not  discover  where  the  child  was,  and  that  when  they 
did  make  the  discovery  they  took  these  proceedings  and  in 
good  faith  prosecuted  them  to  a  conclusion. 

I  have  no  time  to  analyze  all  the  evidence,  but  I  am  satis- 
fied that  from  the  whole  record  the  conclusion  of  the  court 
in  granting  the  application  of  Teresa  Magee  was  correct, 
and  that  the  motion  for  a  new  trial  should  be  denied.  If  I 
have  erred  in  this  conclusion,  as  is  argued  by  the  counsel 
for  the  respondent,  I  trust  he  will  have  ample  opportunity 
of  making  that  error  manifest  in  the  appellate  tribunal. 


Estate  op  Gibson.  9 

In  Appointing  a  Guardian,  the  court  is  guided  primarily  by  what 
appears  to  be  for  the  best  interests  of  the  child,  and  may  award  its 
custody  to  a  person  other  than  the  parent  if  its  well-being  demands 
such  a  course.  The  wishes  of  the  child,  when  of  sufficient  age  to 
form  an  intelligent  preference,  although  not  conclusive  on  the  court, 
will  always  be  given  due  consideration;  and  it  is  not  necessary,  in 
order  for  the  child  to  enjoy  this  privilege,  that  it  should  have  reached 
the  age  of  fourteen:  2  Eoss  on  Probate  Law  and  Practice,  950-952, 
citing  In  re  Lundberg,  143  Cal.  402,  77  Pac.  156;  Estate  of  Dellow,  1 
Cal.  App.  529,  82  Pac.  558;  Andrino  v.  Yates,  12  Idaho,  618,  87  Pac. 
787;  Eussner  v.  McMillan,  37  Wash.  416,  79  Pac.  988;  Willet  v. 
Warren,  34  Wash.  647,  76  Pac.  273;  Stapleton  v.  Poynter,  111  Ky. 
264,  98  Am.  St.  Eep.  411,  62  S.  W.  730,  53  L.  E.  A.  784. 


Estate  of  ALMIRA  GIBSON,  Deceased. 
[No.  3,211;   decided  November  2,   1885.] 

Charitable  Bequest — Necessity  of  Naming  Corporation. — A  char- 
itable institution  which  is  made  a  residuary  legatee  need  not  be 
designated  in  the  will  by  its  corporate  name. 

Charitable  Bequest — Evidence  to  Identify  Beneficiary. — If  either 
from  the  will  itself  or  from  extrinsic  evidence  the  object  of  a  char- 
itable bequest  can  be  ascertained,  the  court  will  not  invalidate  the 
gift   or   defeat    the    donor's   intention. 

Charitable  Bequest — Ascertainment  of  Beneficiary. — A  residuary  be- 
quest to  "The  Old  Ladies'  Home,  at  present  near  Eincon  Hill,  at  St. 
Mary's  Hospital,"  is  held  to  have  been  intended  for  the  "Sisters  of 
Mercy,"  a  corporation  embracing,  as  part  of  its  charitable  design,  the 
"Old  Ladies'  Home." 

Executor — Compensation  Fixed  by  Will. — When  an  estate  is  solvent,, 
the  compensation  of  the   executor,  fixed  by  the  will  in  lieu   of  stat- 
utory commissions,  should  be  paid  as  "expenses  of  administration." 

Charitable   Bequests,   so   Far    as   They   Exceed   One-third   the    dis-- 
tributable  estate,  are  void. 

John  M.  Burnett,  for  the  applicant. 

W.  S.  Goodfellow,  for  the  opposing  heirs. 

Selden  S.  Wright,  for  absent  heirs. 

COFFEY,  J.  The  provision  of  the  will  under  discussion 
here  is  in  these  terms : 


10  Coffey's  Probate  Decisions,  Vol.  1. 

"Twelfth. — I  give  and  devise  the  remainder  of  all  my  es- 
tate, after  the  above  legacies  have  been  paid,  to  the  Old 
Ladies'  Home,  at  present  near  Rincon  Hill,  at  St.  Mary's 
Hospital. ' ' 

The  "Sisters  of  Mercy"  claims  this  bequest,  alleging  that 
it  is  an  incorporation  incorporated  March  7,  1868,  under 
the  laws  of  California,  and  that  it  has  since  continued  to 
exist  under  the  laws  then  in  force,  having  its  principal  place 
of  business  in  San  Francisco;  that  among  its  objects  is  the 
care  of  sick,  unprotected  and  needy  persons,  and  that  to 
carry  out  said  object  the  corporation,  prior  to  January  1, 
1878,  organized  and  instituted  the  Old  Ladies'  Home,  men- 
tioned and  described  in  the  provision  herein  quoted  from 
the  will  of  Almira  Gibson;  that  the  said  Old  Ladies'  Home 
is  and  has  been  conducted  by  the  Sisters  of  Mercy,  corpora- 
tion, as  part  of  its  work,  and  as  one  of  the  means  to  carry  out 
its  object,  and  that  it  is  carried  on  and  conducted  in  the 
building  belonging  to  said  corporation;  and  that  the  bequest 
in  said  will  to  the  "Old  Ladies'  Home"  was  intended  to  go 
to  the  corporation  for  the  benefit  of  said  part  of  its  work, 
namely,  the  Old  Ladies'  Home.  To  this  claim  the  heirs  at 
law  respond  that  the  legatee  has  no  legal  capacity  to  take, 
and  that  they  are  entitled  to  the  residue  of  the  estate.  The 
heirs  contend  that  the  bequest  is  direct,  not  in  trust  nor 
for  the  use  of  anybody,  but  it  is  a  direct  bequest  to  an  institu- 
tion, the  "Old  Ladies'  Home,"  having  no  capacity  to  take, 
nor  being  a  corporation  or  society,  but  simply  an  institution 
under  the  charge  of  the  Sisters  of  Mercy,  the  petitioners, 
who  are  not  named  in  the  will. 

The  will  is  olographic,  and  is  a  careful  composition,  leav- 
ing little  or  no  need  of  interpretation  or  construction  apart 
from  the  provision  under  review.  It  remains  to  be  seen 
whether  that  provision  inadequately  describes  the  object  of 
testator's  bounty,  or  is  so  expressed  as  to  bar  the  petitioner 
corporation  from  claiming  it  as  the  proper  channel  of  be- 
stowing the  benefaction  on  "The  Old  Ladies'  Home."  The 
bequest  is  in  accord  with  and  to  carry  out  the  objects  of 
the  corporation  petitioning  here,  which  had  the  capacity  to 
take  under  the  law:  Estate  of  Eastman,  60  Cal.  310.     So  long 


Estate  of  Gibson.  11 

as  the  testator  sufficiently  indicates  the  institution  or  in- 
dividual intended,  that  intention  should  be  executed :  Jack- 
son V.  Phillips,  14  Allen,  539.  A  charitable  institution  need 
not  be  named  by  its  corporate  name :  Power  v.  Cassidy,  79  N. 
Y.  610,  35  Am.  Rep.  550;  St.  Luke's  Home  v.  Association 
etc.,  52  N.  Y.  191,  11  Am.  Rep.  897;  2  Redfield  on  Wills 
*515,  *516. 

The  intent  and  purpose  of  the  donor  should  be  accom- 
plished. Of  the  intention  of  the  testator  to  make  the  claim- 
ant the  object  of  her  bounty,  and  to  contribute  of  her  sub- 
stance to  the  charity  administered  by  said  "Sisters  of  Mercy" 
corporation,  there  can  be  no  doubt  upon  the  evidence.  If 
either  from  the  will  itself  or  from  extrinsic  evidence  the 
object  of  her  bounty  can  be  ascertained,  the  court  will  not 
invalidate  the  provision  or  defeat  the  intention  of  the  tes- 
tatrix. The  institution  here  was  described  Avith  entire  ac- 
curacy, and  the  evidence  is  conclusive  that  the  testatrix  knew 
that  the  only  conduit  of  her  charity  was  the  corporation 
claimant.  In  the  N.  Y.  Inst,  for  the  Blind  v.  How's  Exrs., 
Denio,  J.,  expressed  himself  substantially  to  this  effect,  re- 
marking also  that  he  did  not  think  it  necessary  to  go  over 
the  cases  to  show  how  considerable  an  error  might  be  over- 
looked or  reconciled:  "There  is  much  solemn  triflino;  in  the 
old  books  upon  this  question":  10  N.  Y.  88.  I  think  the  case 
of  Lefevre  v.  Lefevre,  59  N.  Y.  434,  sustains  this  view,  and 
I  do  not  consider  the  Missionary  Soc.  v.  Chapman,  128  Mass. 
265,  as  authority  against  the  petitioner,  since  it  is  shown 
here  that  the  "Old  Ladies'  Home"  is  an  existing  institution 
forming  part  of  the  work  of  the  "Sisters  of  Mercy"  corpora- 
tion, and  one  of  the  means  of  carrying  out  its  charitable  de- 
signs, conducted  in  the  building  designated  in  the  will,  which 
is  part  of  the  premises  belonging  to  petitioner,  and  that  the 
testatrix  intended  her  bequest  to  go  to  said  corporation  for 
the  benefit  of  said  part  of  its  work,  namely,  the  "Old  Ladies' 
Home." 

The  conclusion  reached  as  to  this  point  is  that  the  petition 
of  the  "Sisters  of  ]\Iercy"  corporation  be  granted. 

2.  As  to  executors'  compensation.  When  the  estate  is 
solvent,  as  in  this  (ase,  the  compensation  fixed  by  the  will, 


12  Coffey's  Probate  Decisions,  Vol.  1. 

in  lieu  of  statutory  commissions,  should  be  paid  as  ' '  expenses 
of  administration." 

3.  So  far  as  the  charitable  bequests  exceed  one-third  of 
the  distributable  estate,  they  must  be  adjudged  void ;  the  be- 
quests in  items  "Fourth"  and  ''Twelfth"  are  in  favor  of 
charitable  institutions. 

Subject  to  the  views  hereinabove  expressed  the  petition  for 
distribution  is  granted. 


The  Principal  Case  was  Affirmed  by  the  supreme  court  of  California 
in  75  Cal.  329,  17  Pac.  438.  For  a  discussion  of  the  certainty  and 
unity  required  in  the  creation  of  charitable  trusts,  see  the  note  in 
64  Am.  St.  Eep.  756-772.  It  is  well-understood  that  a  degree  of  vague- 
ness is  allowable  in  charitable  bequests:  Snider  v.  Snider,  70  S.  C. 
555,  106  Am.  St.  Eep.  754,  50  S.  E.  504;  Kemmerer  v.  Kemmerer,  233 
111.  627,  121  Am.  St.  Rep.  600,  84  N.  E.  256.  A  consideration  of  what 
are  charitable  uses  or  trusts  will  be  found  in  the  note  in  63  Am.  St. 
Eep.  248. 


Estate  of  DANIEL  T.  MURPHY,  Deceased. 

[No.  4,313;  decided  October  23,  1886.] 

Account  of  Executor — Objections  to  Expense  of  Lease. — Upon  the 
settlement  of  the  account  of  an  executor  containing  items  of  ex- 
penditures in  executing  a  lease  under  authority  of  the  will,  which 
items  the  heirs  contest  on  the  ground  of  the  invalidity  of  the  leased 
the  court  will  not  consider  the  lease  invalid. 

Executor — Renunciation  of  Compensation. — The  fact  that  an  ex- 
ecutor at  one  time  entertained  and  expressed  an  intention  to  renounce 
his  commissions  does  not  bar  his  right  to  claim  them  if  he  has  made 
no  renunciation  in  writing  nor  made  any  agreement  prior  to  ap- 
pointment to  waive  compensation. 

Executor — Liability  for  Interest  on  Funds. — An  executor  who  with- 
draws funds  from  the  capital  account  of  a  firm  of  which  the  testator 
was  a  member,  and  permits  them  to  lie  idle  in  a  bank,  is  chargeable 
with   interest   thereon. 

Account  of  Executor — Expense  of  Repairs. — Where  an  executor,  as 
an  inducement  to  the  heirs  to  join  with  him  in  the  execution  of  a 
lease,  represents  to  them  that  the  expense  of  alterations  and  fitting  up 
for  the  tenant  will  not  exceed  a  certain  sum,  he  cannot  be  allowed 
for  expenditures  beyond  that  sum. 


Estate  of  Murphy.  13 

Account  of  Executor. — Expenditures  that  do  not  Add  to  the  Rental 
Value  of  ijremises  to  be  leased,  and  injudiciously  made,  should  be 
disallowed. 

Fixtures. — The  Question  as  to  What  are  or  are  not  "Fixtures"  de- 
pends for  its  determination  upon  the  circumstances  of  the  construction 
and  intended  use  of  the  articles. 

Daniel  T.  Murphy  died  on  June  3,  1885,  in  the  city  of  New 
York,  of  which  place  he  was  a  resident  at  the  time  of  his 
death,  leaving  an  estate  in  San  Francisco,  California.  He 
left  a  will,  bearing  date  May  15,  1883,  and  two  codicils,  dated 
respectively  May  18,  1885,  and  May  23,  1885. 

On  the  eighth  day  of  June,  1885,  the  will  and  codicils  were 
filed,  together  with  a  petition  for  their  probate,  and  for  the 
appointment  of  John  T.  Doyle  and  Adam  Grant,  two  of  the 
nominees  of  the  testator,  as  executors.  The  applications  were 
granted  on  June  19,  1885,  and  the  executors  named  duly 
qualified. 

On  November  6,  1885,  John  T.  Doyle  tendered  his  res- 
ignation as  one  of  the  executors,  and,  after  the  settlement  of 
his  account,  he  was  discharged;  Adam  Grant  continuing  as 
sole  executor. 

During  his  lifetime  Mr.  IMurphy  began  the  erection  of  a 
building  of  great  value  on  the  corner  of  McAllister,  Jones 
and  Market  streets  in  San  Francisco,  the  lower  floors  of 
which  it  w^s  intended  should  be  occupied  by  the  firm  of 
Murphy,  Grant  &  Co.,  a  wholesale  house  of  which  he  was  a 
member,  as  a  retail  store.  Shortly  before  Mr.  Murphy's 
death,  however,  one  of  the  members  of  the  firm  mentioned 
died,  and  Mr.  IMurphy  being  seriously  ill  in  May,  1885,  and 
this  building  being  then  still  unfinished,  and  the  purpose  of 
the  firm  to  occupy  it  having  been  abandoned,  the  decedent  ex- 
ecuted the  codicil  of  May  18,  1885,  in  which  he  gave  his  ex- 
ecutors the  power  to  complete  the  building,  and  to  modify  the 
original  plans,  if  necessary,  and  also  to  lease  it  for  the  term 
of  five  years. 

Mr.  Grant,  as  sole  remaining  executor,  leased  the  lower 
portion  of  the  building,  first  the  western,  and  then  also  the 
eastern  part,  to  the  firm  of  J.  J.  O'Brien  &  Co.,  for  five 
years,  and  covenanted  for  the  fitting  up  of  the  premises  to 


14  Coffey's  Probate  Decisions,  Vol.  1. 

suit  the  purposes  of  the  business  of  the  tenants.  Upon  the 
representations  of  the  executors  as  to  the  advantages  to  be 
derived  from  the  lease,  the  devisees  of  the  property  joined 
in  it  for  a  further  period  of  five  years.  The  executor  also 
represented  to  the  heirs  that  the  expense  of  altering  the 
premises  for  the  use  of  J.  J.  O'Brien  &  Co.  would  not  ex- 
ceed $12,000  (instead  of  that  it  amounted  to  over  $20,000) 
and  that  the  expense  of  fitting  up  a  "parlor"  would  not  ex- 
ceed more  than  $4,000. 

Previous  to  the  execution  of  this  lease  negotiations  were 
pending  with  other  persons  for  the  leasing  of  the  premises 
upon  terms  which  some  of  the  heirs  thought  more  advan- 
tageous, but  acting  upon  the  representations,  among  others, 
of  the  executor  (who  was  a  member  of  decedent's  firm,  which 
firm  was  in  the  same  line  of  business  at  wholesale  as  that  of 
J.  J.  O'Brien  &  Co.  at  retail),  that  the  firm,  in  which  the 
estate  had  an  interest,  would  profit  thereby,  the  lessors  closed 
the  transaction  with  Mr.  O'Brien. 

The  executor,  thereafter  finding  that  his  position  as  such 
conflicted  with  his  interest  as  a  surviving  partner  in  the  firm 
of  Murphy,  Grant  &  Co.,  filed  his  account  and  tendered  his 
resignation. 

During  the  negotiations  for  the  O'Brien  lease  Mr.  Grant 
intimated  to  the  heirs  that  he  would  charge  no  commissions 
as  executor. 

The  heirs  contested  the  items  of  his  account  relating  to 
the  fitting  up  of  the  leased  premises,  claiming  that  the  lease 
was  invalid,  on  the  grounds  that  better  terms  could  have 
been  obtained  from  other  parties,  and  that  the  executor  was 
bound  to  the  highest  degree  of  care,  diligence  and  prudence; 
also,  that  the  expenses  of  fitting  up  the  premises  for  the 
occupation  of  J.  J.  O'Brien  &  Co.  were  too  high,  and  the 
improvements  made  for  their  benefit  unusual  on  the  part  of 
a  landlord,  and  not  "fixtures";  that  the  expenses  were  much 
greater  than  the  executor  had  represented  to  the  heirs  that 
they  would  be,  and  that  he  misrepresented  certain  facts  to 
them ;  further,  that  as  a  member  of  the  firm  of  Murphy,  Grant 
&  Co.,  the  executor  was  interested  in  giving  Mr.  O'Brien  the 


Estate  op  Murphy.  15 

preference,  and  that  as  remaining  executor  he  had  no  power 
to  execute  the  first  five  years  lease  alone. 

It  was  also  claimed  that  he  had  waived  his  commissions  as 
executor,  which  he  asked  to  be  allowed  him  in  his  account, 
which  waiver  was  one  of  the  inducements  to  the  heirs  for  en- 
tering into  the  lease. 

It  also  appeared  that  the  executor  had  withdrawn  the  sum 
of  $100,000  from  the  capital  account  of  ]\Iurphy,  Grant  & 
Co.,  and  out  of  the  same  had  paid  a  debt  of  the  estate  of 
some  fifty-odd  thousand  dollars  owing  to  Donohue,  Kelly  & 
Co.,  and  had  deposited  the  balance  with  these  bankers,  where 
it  was  lying  idle,  and  the  heirs  sought  to  charge  him  with 
interest  on  this  balance. 

Jarboe,  Harrison  &  Goodfellow,  for  executor. 

McAllister  &  Bergin,  for  contesting  heirs. 

COFFEY,  J.  On  the  26th  of  March.  1886,  Adam  Grant, 
desiring  to  retire  from  his  office  as  executor,  filed  his  re- 
port and  account;  on  the  10th  of  April,  1886,  Anna  L. 
Murphy,  widow,  and  Helen  and  Fannie  Murphy,  daughters 
of  decedent,  filed  exceptions  to  said  account,  and  on  the 
17th  of  April,  1886,  they  filed  a  supplemental  and  additional 
objection.  Isabella  Murphy,  another  daughter  of  decedent, 
on  the  said  last-mentioned  dates,  filed  in  her  own  behalf 
separate  exceptions  and  supplemental  exceptions  to  said  ac- 
count. The  matter  came  up  for  hearing  on  the  17th  of  April, 
1886,  and  occupied,  from  time  to  time,  until  August  28, 
1886,  when,  after  argument,  it  was  submitted  for  the  con- 
sideration and  decision  of  the  court.  The  testimony  is  com- 
prised in  a  volume  of  six  hundred  and  six  typewritten  pages, 
which  the  court  has  considered. 

I  cannot  undertake  to  do  more  than  to  state  the  results  of 
my  reflection  upon  the  evidence  and  arguments. 

The  objections  and  exceptions  to  the  account  as  a  whole 
are  overruled  and  denied. 

Whatever  ma^'  have  been  the  inducements  which  caused 
the  contestants  to  execute  the  ten  years  lease,  this  court  can- 
not here  treat  that  instrument  as  invalid. 


16  Coffey's  Probate  Decisions,  Vol.  1. 

While  the  executor  admits  that  at  one  time  he  entertained 
and  expressed  the  intention  to  renounce  his  commissions  or 
to  make  no  claim  therefor,  he  insists  that  he  changed  his 
mind,  and  now  demands  as  his  due  the  statutory  allowance. 

I  do  not  perceive  any  way  in  which,  under  the  circum- 
stances of  this  case,  the  court  can  deny  to  the  executor  what 
the  statute  allows  him.  I  find  no  case  sustaining  counsel's 
view— the  Estate  of  Davis,  65  Cal.  309,  4  Pac.  22,  3  W.  C.  R. 
61,  was  a  case  where  the  renunciation  was  made  in  considera- 
tion of  the  appointment — a  promise  made  before  the  appoint- 
ment that  the  appointee  would  not  charge.  Schouler  says: 
"If  one  has  been  appointed  on  a  distinct  understanding  with 
those  interested  to  serve  as  executor  or  administrator  with- 
out recompense  ....  he  must  abide  by  his  engagement": 
Schouler  on  Executors,  sec.  545. 

That  is  not  this  case.  Adam  Grant  made  no  stipulation 
or  agreement  prior  to  his  appointment,  nor  has  he  renounced 
in  writing  (section  1616,  Code  Civ.  Proc.)  his  claim  to  com- 
pensation; but  he  insists  that,  notwithstanding  his  declared 
intention  at  one  time,  he  has  now  a  strictly  legal  right  to 
commissions.  The  statute  says  (section  1618,  Code  Civ.  Proc.) 
he  must  be  allowed  commissions  upon  the  amount  of  the  es- 
tate accounted  for  by  him. 

The  court  finds  that  the  executor  has  not  waived  or  re- 
nounced his  commissions,  and  that  he  is  entitled  to  them — 
the  amount  to  be  ascertained  hereafter. 

The  executor  is  chargeable  with  interest  on  the  balance  of 
the  money  withdrawn  from  the  capital  account  of  Murphy, 
Grant  &  Co.,  which  has  been  lying  idle  on  deposit  in  the 
bank  of  Donohoe,  Kelly  &  Co.  This  balance  is  the  difference 
between  the  amount  necessary  to  discharge  the  Donohoe  debt 
.and  the  amount  drawn  out  of  the  capital  account. 

It  is  clear  to  the  court  that  all  expenditures  in  fitting  up 
the  store  for  the  occupancy  of  O'Brien  &  Co.  in  excess  of 
twelve  thousand  dollars,  and  all  outlay  in  and  about  the 
' '  parlor ' '  beyond  the  sum  of  four  thousand  dollars,  should  be 
disallowed. 

The  lowering  of  the  skylight  was  not  indispensable  to  the 
-enjoyment  of  the  premises  by  the  tenants  of  the  first  floor, 


Estate  of  Murphy.  17 

as  sufficient  light  might  have  been  had  by  placing  a  glass 
roof  over  that  part  of  the  store  now  covered  by  the  skylight, 
so  the  architect,  Percy,  testifies.  I  do  not  think,  from  my  own 
observation  when  in  company  with  the  counsel  for  the  re- 
spective parties,  that  the  lowering  of  the  skylight  was  ju- 
dicious. It  certainly  has  not  added  to  the  rental  value  of  the 
second  floor.     It  should  be  disallowed. 

With  reference  to  the  mirrors  and  stools,  while  ordinarily 
they  might  not  be  regarded  as  "fixtures,"  I  think  that  under 
the  evidence  in  this  case  they  must  be  so  considered.  For  the 
purposes  of  the  l)usiness  to  which  the  premises  are  devoted, 
the  stools  are  about  as  necessary  as  the  counters,  and  the  tes- 
timony is  that  the  space  occupied  by  the  mirrors  had  to  be 
filled,  and  the  cost  would  have  been  no  less  if  paneling  had 
been  inserted. 

All  items  not  mentioned  in  this  memorandum  are  allowed. 


An  Executor  or  Administrator,  like  any  other  trustee,  may  waive 
or  renounce  his  right  to  compensation  for  performing  the  duties  of 
his  trust:  Noble  v.  Whitten,  38  Wash.  262,  80  Pac.  451;  Estate  of 
Field,  33  Wash.  63,  73  Pac.  768;  and  a  promise  by  him  to  the  person 
primarily  entitled  to  the  administration  of  the  estate,  before  his  ap- 
pointment, that  he  will  not  charge  for  his  services,  is  equivalent  to 
a  renunciation  of  his  claim:  Estate  of  Davis,  65  Cal.  309,  4  Pac.  22. 
A  waiver  of  commissions  in  a  petition  for  letters  of  administration 
does  not  deprive  the  administratrix  of  the  right  to  commissions,  where 
the  waiver  was  without  objection,  and  by  leave  of  court  withdrawn 
before  she  was  appointed:  Estate  of  Carver,  123  Cal.  102,  55  Pac.  770. 

Executors,  having  Improperly  Withdrawn  Money  from  the  estate 
to  pay  a  bookkeeper,  were  held  liable  for  interest  thereon  at  the  legal 
rate  until  it  was  repaid  to  the  estate,  in  Estate  of  Scott,  1  Cal.  App. 
740,  83  Pac.  85.  For  a  further  consideration  of  the  liability  of  ex- 
ecutors and  administrators  for  interest  on  funds  belonging  to  the 
estate,  see  Ross  on  Probate  Law  and  Practice,  702-704. 

Prob.  Dec,  Vol.  I — 2 


18  Coffey  ^s  Probate  Decisions,  Vol.  1. 


Estate  op  LENA  FLEISHMAN. 

[No.  11,697;  decided  January  13,  1892.] 
Will — Attestation  in  Presence  of  Testator. — There  must  be  two 
attesting  witnesses  to  a  will,  each  of  whom  must  sign  his  name  as 
a  witness  at  the  end  of  the  will,  at  the  testator's  request  and  in  his 
presence.  In  the  presence  of  the  testator  means  that  he  must  not 
only  be  present  corporally,  but  mentally  as  well,  capable  of  under- 
standing the  acts  which  are  taking  place  before  him. 

A  Will  is  not  Attested  in  the  Presenec  of  the  Testatrix  when  the 
witnesses  subscribe  their  names  in  an  apartment  adjoining  the  room 
in  which  she  is  lying  ill,  where  it  is  impossible  for  her  to  see  them, 
she  having  previously  signed  her  name  while  reclining  on  her  bed, 
not  being  able  to  rise  therefrom. 

Lena  Fleishman  died  on  November  16,  1891,  leaving  a  hus- 
band and  two  brothers.  On  December  5,  1891,  a  petition 
was  filed  by  the  husband  for  the  probate  of  a  will  dated 
November  15,  1891.  On  December  23,  1891,  the  brothers 
filed  written  grounds  of  opposition  to  the  probate  of  the  will. 
The  grounds  of  contest  appear  from  the  opinion  of  the  court. 

Sullivan  &  Sullivan,  for  contestants. 

Craig  &  Meredith,  for  proponent. 

COFFEY,  J.  The  question  here  is  whether  the  instru- 
ment propounded  for  probate  as  the  will  of  Lena  Fleish- 
man, deceased,  was  signed  by  the  persons  whose  names  are 
appended  thereto  as  subscribing  witnesses  in  the  presence  of 
the  testatrix. 

Section  1276  of  the  Civil  Code  of  California  provides,  in 
the  matter  of  an  attested  will,  subdivision  4,  that  there  must 
be  two  attesting  witnesses,  each  of  whom  must  sign  his  name 
as  a  witness,  at  the  end  of  the  will,  at  the  testator's  request 
and  in  his  presence. 

In  presence  of  the  testator  means  that  the  testator  must 
not  only  be  present  corporally,  but  mentally  as  well,  capable 
of  understanding  the  acts  which  are  taking  place  before 
him. 

In  this  case  the  instrument  was  signed  by  the  subscrib- 
ing witnesses  in  an  apartment  adjoining  the  room  in  which 


Estate  of  Fleishman.  19 

the  testatrix  was  lying  ill  upon  her  bed.  Between  the  bed, 
and  opposite  where  her  head  lay,  there  was  a  partition  wall, 
an  absolutely  opaque  substance,  dividing  the  two  apart- 
ments, and  on  the  other  side  of  that  wall,  at  a  table  near 
the  window,  without  the  sight  or  hearing  of  the  testatrix, 
the  two  witnesses  subscribed  their  names,  the  testatrix  hav- 
ing previously  signed  her  name  while  reclining  on  her  bed, 
not  being  able  to  rise  therefrom.  It  was  impossible  for  her 
to  see  what  was  transpiring  on  the  other  side  of  the  wall  by 
iiatural  vision. 

These  are  the  facts  in  evidence.  Subjoined  is  a  review 
of  the  cases  cited  by  proponent  in  support  of  the  propo- 
sition that  there  was  a  valid  execution  of  the  paper  prof- 
fered. 

In  Hogan  v.  Grosvenor,  10  Met.  56,  43  Am.  Dec.  411,  the 
attesting  witnesses  signed  in  the  presence  of  the  testator. 

In  Ambre  v.  Weishaar,  74  111.  110,  "the  testatrix  could 
have  seen  the  witnesses  in  the  dining-room  at  the  table,  while 
they  were  signing  the  will." 

Kedfield  on  Wills  declares  the  rule  as  follows:  "The  rule 
requires  that  the  witnesses  should  be  actually  within  the 
range  of  the  organs  of  sight  of  the  devisor,  and  where  the 
devisor  cannot  by  any  possibility  see  the  act,  that  is  out  of 
his  presence":  Redfield  on  Wills,  247  (star  *  page). 

In  Shires  v.  Glasscock,  2  Salk.  688,  the  court  decided  "that 
it  is  enough  if  the  testator  might  see — it  is  not  necessary 
that  he  should  actually  see — them  (the  attesting  witnesses)." 

In  Dary  v.  Smith,  3  Salk.  395,  the  court  sustained  the 
will,  saying,  "it  was  a  sufficient  subscribing  within  the  mean- 
ing of  the  statute,  because  it  was  possible  that  the  testator 
might  see  them  (the  attesting  witnesses)  subscribe  their 
names. ' ' 

In  Todd  V.  Winchelsea,  2  Car.  &  P.  there  was  a  question 
as  to  whether  the  will  was  attested  in  the  room  where  the 
will  was  executed,  or  whether  in  a  part  of  the  ad.ioining 
room  where  the  testator  "might  have  seen"  the  witnesses 
attest  the  will.  The  court  in  that  case,  instructing  the  jury, 
said:  "You  will  therefore  have  to  say  whether  the  will  was 
attested  in  the  bedroom;  if  so,  there  is  no  doubt.     But,  if 


20  Coffey's  Probate  Decisions,  Vol.  1. 

you  think  it  was  attested  in  the  other  room,  whether  it  was 
attested  in  such  part  of  that  room  that  the  testator  might 
have  seen  the  witnesses  attest  it.  In  either  of  those  eases 
plaintiffs  are  entitled  to  a  verdict;  but  if  you  think  other- 
wise, I  am  of  the  opinion  that,  in  point  of  law,  you  ought 
to. find  a  verdict  for  the  defendants." 

In  Hill  V.  Barge,  12  Ala.  695,  696,  we  find:  ''The  design 
of  the  statute  in  requiring  the  attestation  to  be  made  in  the 
presence  of  the  testator  was  to  prevent  the  substitution  of  a 
surreptitious  will.  In  the  presence  of  the  testator,  there- 
fore, is  within  his  view.  He  must  be  able  to  see  the  wit- 
nesses attest  the  will,  or,  to  speak  with  more  precision,  their 
relative  position  to  him,  at  the  time  they  are  subscribing 
their  names  as  witnesses,  must  be  such  that  he  may  see  them 
if  he  thinks  proper." 

In  Nock  V.  Nock,  10  Gratt.  106,  the  witness  signed  at  a 
bureau  in  an  adjoining  room,  sixteen  or  seventeen  feet  from 
the  bed  where  the  testator  was  lying  with  his  head  raised 
up,  and  from  which  he  could,  through  an  open  door,  plainly 
see  the  witnesses,  excepting  their  forearms  and  hands,  while 
writing. 

In  Lamb  v.  Girtman,  26  Ga.  629,  it  was  held  that  the  lower 
court  erred  because  it  refused  to  charge  that,  if  the  testator 
might  have  seen  the  attestation,  it  is  sufficient. 

In  Wright  v.  Lewis,  5  Rich.  212,  216,  55  Am.  Dec.  714,  the 
testator  stepped  into  and  remained  in  the  adjoining  room, 
from  which  he  might  have  seen  the  witnesses  subscribe  their 
names. 

In  Watson  v.  Pipes,  32  Miss.  468,  the  court  say.  "It  is 
settled  by  all  the  authorities  that  it  is  not  absolutely  essential 
that  the  testator  should  actually  see,  but  if  the  witnesses 
be  shown  to  have  been  within  the  scope  of  the  testator's  view 
from  his  actual  position,  it  will  be  sufficient." 

In  McElfresh  v.  Guard,  32  Ind.  412,  the  trial  court  in- 
structed the  jury  that  "the  law  requires  attestation  in  the 
presence  of  the  testator  to  prevent  obtaining  another  will 
in  place  of  the  true  one.  It  is  therefore  enough  that  the 
testator  might  see,"  etc.     The  instruction  was  sustained. 


Estate  of  Fleishman,  21 

Contestants  refer  to  the  following  cases  as  instances  of 
what  has  been  deemed  not  a  sufficient  signing  in  the  tes- 
tator's presence: 

In  Edelston  v.  Spake,,  Holt,  222,  223,  :\rod.  259,  Comb. 
156,  the  witnesses  subscribed  their  names  in  a  hall  adjoin- 
ing the  room  where  the  testator  lay,  but  in  such  a  place  that 
he  could  not  see  them. 

In  Machell  v.  Temple,  2  Show.  288,  the  witnesses  with- 
drew out  of  sight  into  another  room,  at  the  request  of  the 
testator,  because  the  noise  in  his  sick  room  disturbed  him. 

In  Broderick  v.  Broderick,  1  P.  Wms.  239,  4  Vin.  Abr, 
534,  the  witnesses,  for  the  ease  of  the  testator,  went  down- 
stairs into  another  room,  to  attest  his  will.  See,  also.  Onions 
V.  Tyrer,  Id.  343. 

In  Clark  v.  Ward,  1  Bro.  P.  C.  137,  the  witnesses  sub- 
scribed at  a  window,  in  a  passageway,  where  they  could  see 
but  part  of  the  bed,  and  the  testator,  lying  thereon,  could 
not  see  them. 

In  Tribe  v.  Tribe,  13  Jur.  793,  1  Rob.  775,  the  testatrix 
lay  in  bed  with  the  curtains  drawn,  and  her  back  turned 
toward  the  witnesses,  who  were  signing  at  a  table  in  the  same 
room. 

In  Wright  v.  ]\Ianifold,  1  M.  &  S.  294,  the  testator  could 
not,  from  his  room,  have  seen  into  the  room  where  the  wit- 
nesses signed,  without  putting  his  head  out  into  a  passage- 
way which  connected  the  two  rooms,  although,  as  the  wit- 
nesses were  retiring  from  his  room,  he  called  upon  his  at- 
tendant to  assist  him  in  rising. 

In  Ellis'  Case,  2  Curt.  395,  the  witnesses  were  in  an  ad- 
joining room,  where  they  could  neither  see  the  testator  nor 
be  seen  by  him,  although  they  were  so  near  that  they  could 
hear  him  breathe. 

In  Colman's  Case,  3  Curt.  118,  folding  doors  between  the 
two  rooms  were  open,  being  tied  back,  but  the  table  on  which 
the  witnesses  wrote  was  so  situated  that  the  testator  could 
not  possibly  have  seen  it. 

In  Norton  v.  Bazett,  Dea  &  S.  (5  Am.  Law  Reg.  52),  the 
witnesses  were  clerks  of  the  testator,  and  called  by  him  from 
an  outer  office  into  his  own,  where  he  was  sitting  with  his 


22  Coffey's  Probate  Decisions,  Vol.  1. 

back  toward  the  door.  The  will  was  written  on  two  sepa- 
rate sheets,  the  second  (see  Bond  v.  Sewell,  3  Burr.  1773; 
Gass  V.  Gass,  3  Humph.  278;  Horsford's  Case,  L.  R.  3  Prob. 
211)  of  which  he  signed,  and  they  (his  table  being  full  of 
papers)  took  it  into  their  room  for  attestation.  When  they 
returned  he  was  standing  up,  but  otherwise  relatively  in  the 
same  position  as  before,  and  from  which  it  was  impossible 
for  him  to  have  seen  them  while  signing. 

In  Killiek's  Case,  3  Sw.  &  Tr.  578,  the  deceased  could,  by 
changing  her  position  in  bed,  have  seen  the  witnesses  sign 
her  will  in  another  room,  but  the  proof  was  that  she  did  not 
do  so. 

In  Violette  v.  Therriau,  1  Pug.  &  Bus.  (N.  B.)  389,  the 
testator  had  been  paralyzed  and  was,  when  his  will  was  exe- 
cuted, unable  to  rise  from  his  bed  without  assistance.  A 
small  table  stood  at  the  foot  of  his  bed,  and  was  concealed 
therefrom  by  the  footboard  of  the  bed  rising  above  it,  so 
that,  although  he  could  see  the  persons  of  the  witnesses, 
their  arms  and  hands  and  the  paper  on  which  they  wrote 
on  the  table  were  invisible. 

In  Robinson  v.  King,  6  Ga.  539,  the  testator  signed  his 
will  in  bed,  and  was  not  able  to  get  up  without  assistance. 
The  witnesses  wrote  their  names  thereto  on  a  piazza  ad- 
joining his  room,  about  ten  feet  from  him.  There  was  a 
door  communicating  with  the  room,  but  their  relative  posi- 
tions were  such  that  they  could  not  see  each  other. 

In  Brooks  v.  Duffell,  23  Ga.  441,  a  will  was  executed  by 
the  testator  in  bed,  toward  evening,  and,  for  the  sake  of 
seeing  better,  the  witnesses  stepped  to  a  door,  which,  when 
open  swung  against  the  side  of  his  bed,  so  that,  without 
changing  his  position,  it  would  have  been  impossible  to  see 
them,  and  he  was  too  weak  to  notice  anything  that  was  go- 
ing on. 

In  Reed  v.  Roberts,  26  Ga.  294,  71  Am.  Dec.  210,  the 
testator,  in  extremis,  was  lying  in  a  bed  with  four  high  posts, 
having  a  counterpane  stretched  across  those  at  the  head  to 
protect  him  from  the  air.  After  he  had  signed,  the  will 
was  taken  behind  the  head  of  the  bed,  to  a  chest  against 
the  wall  some  seven  or  eight  feet  distant  and  attested.     The 


Estate  of  Fleishman.  23 

proof  showed  that  he  was  too  feeble  to  change  his  position 
without  help. 

In  Graham  v.  Graham,  10  Ired.  219,  the  witnesses  went 
into  another  room  to  sign  at  a  chest  standing  against  the 
partition,  two  or  three  feet  from  the  open  door.  The  bed 
in  which  the  testator  lay  stood  also  against,  the  partition, 
with  its  head  nearly  opposite  to  the  chest,  so  that  the  testator 
could,  by  turning  his  head,  see  the  backs  of  the  witnesses 
as  they  sat  at  the  chest  writing,  l)ut  he  could  not  see  their 
faces,  arms  or  hands,  nor  the  paper  on  which  they  were 
writing. 

In  Lamb  v.  Girtman,  infra,  the  testator  signed  his  will 
at  a  small  table  in  a  hallway,  and  then,  being  in  feeble  health, 
withdrew  to  his  room,  adjoining,  accompanied  by  a  witness, 
who  returned  to  the  others,  and  then  they  all  signed.  The 
testator,  when  afterward  noticed  by  them,  was  lying  in  the 
ordinary  attitude  on  his  bed,  and  in  that  position  could  not 
have  seen  the  witnesses  when  signing. 

In  Reynolds  v.  Reynolds,  1  Spears,  253,  40  Am.  Dec.  599, 
the  testator,  after  being  raised  to  sign  his  will,  sank  back 
in  his  bed,  and  the  witnesses  went  to  a  table  in  a  hall  and 
signe'd  their  names.  The  testator  could  not  see  them  as  he 
lay,  and,  although  he  had  strength  to  rise  sufficiently  to  see 
them,  yet  he  did  not  rise. 

In  Jones  v.  Tuck,  3  Jones,  202,  the  testator  could  not  see 
the  witnesses  while  signing  his  will  in  another  room,  with- 
out raising  himself  up  on  his  elbow,  but  this  the  witnesses 
thought  him  capable  of  doing,  because  they  saw"  him  turn 
several  times  in  his  bed. 

In  Orndorff  v.  Hummer,  12  B.  Mon.  619,  the  table  on  which 
the  witnesses  wrote  stood  just  behind  the  head  of  the  lounge 
on  which  the  testator  lay,  and  four  or  five  feet  therefrom. 
He  could  not,  from  his  position,  have  seen  the  witnesses  at 
all,  and  it  seemed  doubtful  whether  he  could,  without  assist- 
ance, have  changed  hi.s  posture. 

In  Neil  v.  Neil,  1  Leigh,  6,  the  testator,  when  two  of  the 
witnesses  signed  at  a  table  by  his  bed,  lay  with  his  back  to 
them,  and  his  sight  was  poor,  and  the  light  in  the  room  dim; 
he  could  not  rise  alone. 


24  Coffey's  Probate  Decisions,  Vol.  1. 

In  Boldry  v.  Parris,  2  Cush.  433,  the  testatrix  and  one 
witness  signed  in  her  room,  and  then  that  witness  took  the 
will  into  an  adjoining  room,  where  it  was  signed  by  the  other 
two  witnesses,  out  of  the  testatrix's  sight  altogether. 

In  Edelen  v.  Hardy,  7  Har.  &  J.  61,  16  Am.  Dec.  292, 
the  testator,  after  signing,  requested  the  witnesses  to  retire 
and  they  went  into  an  adjoining  room,  separated  from  the 
other  by  a  plank  partition;  there  was  no  direct  communica- 
tion between  the  rooms,  nor  could  testator  have  possibly  seen 
them :  See  Russell  v.  Falls,  3  Har.  &  McH.  457,  1  Am.  Dec. 
380.  See,  also,  Redfield  on  Wills,  sec.  245,  et  seq ;  Jarman  on 
Wills,  5th  ed.  (Bigelow),  star  *  p.  87,  et  seq.,  and  notes; 
also  section  1276,  Civil  Code. 

In  conclusion,  the  court  may  refer  to  the  record  in  the 
matter  of  the  estate  of  J.  B.  Firnkas,  deceased,  No.  2774, 
of  this  court,  decided  August  19,  1884. 

In  that  case  the  attesting  witnesses  signed  the  alleged  will 
of  the  deceased,  not  in  the  actual  presence  of  the  testator, 
but  in  an  adjoining  room  where  they  could  not  be  seen  by 
him  at  the  time  they  signed  their  names  as  witnesses  to  the 
will. 

This  court  held  that  the  instrument  was  not  attested  in 
the  manner  required  by  law,  and  denied  probate  thereof. 

The  facts  in  the  Firnkas  will  case  and  in  the  case  at  bar 
are  curiously  coincidental,  and  the  judgment  here  should 
correspond. 

Judgment  for  contestants. 


ATTESTATION    AND    WITNESSING    OF    WILLS. 

Object  and  Purpose  of  Attestation. — In  Appeal  of  Canada,  47  Conn. 
450,  the  court  declares  that  the  primary  reason  for  the  presence  of  a 
witness  to  a  will  is  not  that  he  has  known  the  testator  long  or  inti- 
mately; not  that  he  is  required  to  use  or  have  any  skill  in  detecting 
the  presence  of  insanity  or  other  forms  of  mental  disease  or  weakness; 
not  that  he  is  to  have  any  opportunity  for  discovering  the  fraudu- 
lent scheme  which  may  have  culminated  in  the  act  of  the  testator. 
If  the  presence  of  one  or  three  witnesses  provides  any  degree  of  se- 
curity against  the  procurement  of  a  will  from  a  competent  testator 
by  fraud,  or  against  the  procurement  of  one  from  a  testator  without 
mental  capacity,  it  is  an  incidental  benefit;  it  was  not  in  the  mind  of 
the  law.     That  only  intended  that  the  witness  should  be   able,  with 


Estate  op  Fleishman.  25* 

a  great  degree  of  certainty  at  all  times,  possibly  at  great  length  of 
time  after  his  attestation,  to  testify  that  the  testator  put  his  name- 
upon  the  identical  piece  of  paper  upon  which  he  placed  his  own. 
Similarly,  in  Pollock  v.  Glassel,  2  Gratt.  439,  the  court  holds  that  the 
object  of  witnessing  a  will  is  "not  to  obtain  from  the  witnesses  a 
certificate  of  the  essential  facts  of  the  transaction,  but  to  provide  the- 
means  of  proving  them  by  persons  entitled  to  confidence  and  selected 
for  the  purpose.  The  subscription  of  their  names  by  the  witnesses 
denotes  that  they  were  present  at,  and  prepared  to  prove,  the  due  ex- 
ecution of  the  instrument  so  attested,  and  nothing  more";  See,  also, 
Huff  V.  Huff,  41  Ga.  696.  Some  authorities,  however,  take  a  broader 
view  of  the  purposes  of  attestation  and  witnessing.  Thus,  in  Ee 
Pope's  Will,  139  N.  C.  484,  111  Am.  St.  Rep.  813,  52  S.  E.  23.5,  the 
court  holds:  "One  principal  purpose  in  requiring  the  attestation  of 
wills  is  to  surround  the  testator  with  witnesses  who  are  charged  with 
the  present  duty  of  noting  his  condition  and  mental  capacity.  An- 
other is  to  insure  the  identity  of  the  instrument  and  to  prevent  the 
fraudulent  substitution  of  another  document  at  the  time  of  its  execu- 
tion. ' '  To  the  same  effect  are  Odenwaelder  v.  Schorr,  8  Mo.  App. 
458;  Cornelius  v.  Cornelius,  52  N.  C.  593.  This  latter  view  is  also 
sustained  by  other  decisions  set  forth  in  the  discussion  of  the  partic- 
ular requisites  of  attestation  and  witnessing  below. 

Attestation  vs.  Subscription. — In  some  earlier  decisions,  attestation 
is  distinguished  from  subscription.  It  is  said:  "To  attest  the  publica- 
tion of  a  paper  as  a  last  will,  and  to  subscribe  to  that  paper  the  names 
of  the  witnesses,  are  very  different  things,  and  are  required  for  ob- 
viously distinct  and  different  ends.  Attestation  is  the  act  of  the 
senses,  subscription  is  the  act  of  the  hand;  the  one  is  mental,  and  the 
other  mechanical;  and  to  attest  a  will  is  to  know  that  it  was  published 
as  such,  and  to  certify  the  facts  required  to  constitute  an  actual  and 
legal  publication;  but  to  subscribe  a  paper  published  as  a  will  is  only 
to  write  on  the  same  paper  the  name  of  the  witness  for  the  sole  pur- 
pose of  identification";  Swift  v.  Wiley,  1  B.  Mon.  114;  Upchurch  v. 
LTpchurch,  16  B.  Mon.  102;  In  re  Downie's  Will,  42  Wis.  66.  In  later 
decisions,  however,  this  distinction  is  abandoned.  In  Skinner  v. 
American  Bible  Soc,  92  Wis.  209,  65  N.  W.  1037,  the  court  says:  "It 
would  be  difficult,  no  doubt,  to  satisfactorily  define  that  element  in 
the  attestation  of  a  will  which  is  not  also  present  in  the  mere  sub- 
scription to  a  will.  No  physical  act  is  required  in  the  one  which  is 
not  also  required  in  the  other,  and  it  is  not  clear  what  mental  act  or 
fact  appropriate  to  the  one  is  absent  from  the  other":  To  the  same- 
effect,  Luper  v.  Werts,  19  Or.  122,  23  Pac.  850.  Similarly,  in  Drury  v. 
Connell,  177  111.  43,  52  N.  E.  368,  Sloan  v.  Sloan,  184  111.579,  56  N.  E. 
952,  and  Calkins  v.  Calkins,  216  111.  458,  108  Am.  St.  Rep.  233,  75 
N.  E.  182,  1  L.  E.  A.,  N.  S.,  393,  the  court  holds  that  a  requirement  of 
statutory  law  that  a  will  shall  be  "attested"  renders  essential  the 
"subscriptions"  thereof  by  the  attesting  witness,  that  act  being  in- 


26  Coffey's  Probate  Decisions,  Vol.  1. 

volved  in  attestation.  And  lest  the  idea  of  attestation  be  confused 
with  the  mere  physical  act  of  subscription,  the  court  in  Skinner  v. 
Lewis,  40  Or.  571,  62  Pac.  523,  67  Pac.  951,  holds:  "The  attestation 
....  is  not  a  matter  of  mere  formality  in  affixing  one's  name  to 
the  will  as  a  witness.  There  must  be  an  active  mentality  connected 
with  it. " 

Necessity  Witnesses. — It  is   prerequisite  to   the  validity  of  a  will 
that  it  be  attested  and  witnessed  in  conformity  with  statute:  Orth  v. 
Orth,  145  Ind.  184,  57  Am.   St.  Rep.  185,  42  N.  E.  277,  32  L.  R.  A. 
298;  Clark  v.  Miller,  65  Kan.  726,  68  Pac.  1071;  Reynolds  v.  Reynolds, 
1  Spear,  253,  40  Am.  Dec.  599;  Davis  v.  Davis,  6  Lea,  543;   Simmons 
V.  Leonard,  91  Tenn.  183,  30  Am.  St.  Rep.  875,  18  S.  W.  280;  Blanch- 
ard's  Heirs  v.  Blanchard 's  Heirs,  32  Vt.  62;  Pollock  v.  Glassel,  2  Gratt. 
439;   Rosser  v.  Franklin,  6   Gratt.   1,  52  Am.   Dec.   97;   McMechen   v. 
McMechen,  17  W.  Va.  683,  41  Am.  Rep.  682.     This  rule  also  applies  in 
cases  of  interlineations,  corrections,  and  alterations  to  wills:  Eschbach 
V.  Collins,  61  Md.  478,  48  Am.  Rep.  123;  Gardiner  v.  Gardiner,  65  N. 
H.  230,  19  Atl.  651,  8  L.  R.  A.  383;  Jackson  v.  Holloway,  7  Johns.  304. 
See,  also,  In  re  Penniman,  20  Minn.  245  (Gil.  220),  18  Am.  Rep.  368, 
holding  that  after  alterations  and  interlineations  have  been  made  in 
a  will,  it  must  not  only  be  resubscribed  by  the  witnesses,  but   also 
again  signed  by  the  testator.     The  provision  often  found  in  the  stat- 
utes of  wills,  that  the  witness  to  a  will   must  be  "credible"  means 
that  they  must  be   "competent,"  the  words   "credible"  and   "com- 
petent"  being   synonymous  when  used   in   this   connection:    Sloan   v. 
Sloan,  184  III.  579,  56  N.  E.  952;  Standley  v.  Moss,  114  111.  App.  612; 
Rueker  v.  Lambdin,  12  Srnedes  &  M.  230;  Fowler  v.  Stagner,  55  Tex. 
393.     The  requirements  of  attestation  and  witnessing  generally  apply 
to  wills  of  personalty  as  well  as  of  realty  (Hooks  v.  Stamper,  18  Ga. 
471;  Lewis  v.  Maris,  1  Dall.  278;   Town  of  Pawtucket  v.  Ballou,   15 
R.   I.   58,  2   Am.   St.   Rep.   868,   23   Atl.   43;   Reynolds  v.   Reynolds,    1 
Spear,    253,    40    Am.    Dec.    599;    Rosser    v.    Franklin,    6    Gratt.    1,    52 
Am.   Dec.   97;   Blanchard 's   Heirs   v.   Blanchard 's   Heirs,   32   "Vt.   62), 
though   formerly    they   were   not   prescribed   in    cases   of   personalty: 
Davis   V.   Davis,   6   Lea,   543;    Moore   v.   Moore's   Exr.,   8   Gratt.   307 
(before   the   statute   of   1835).     In  the   absence   of   statutory   require- 
ment, a  will  is  valid  without  witnessing  or  attestation:  In  re  High, 
2    Doug.    515.     Moreover,    the    requirements    of    attestation    and   wit- 
nessing,  as   set   forth   in   this   article,    do    not   apply   to    nuncupative 
wills,    nor    in    jurisdictions    where    they    are    recognized    to    olographic 
wills. 

Number  of  Witnesses. — Under  the  law  prevailing  in  most  jurisdic- 
tions, two  competent  witnesses  to  a  will  are  sufficient:  In  re  Walker 
110  Cal.  387,  52  Am.  St.  Rep.  104,  42  Pac.  815,  30  L.  R.  A.  460; 
Clark  V.  Miller,  65  Kan.  726,  68  Pac.  1071;  Griffith's  Exr.  v.  Griffith, 
5  B.  Mon.  511;  Odenwaelder  v.  Schorr,  8  Mo.  App.  458;  Williams  v. 
Miles,  68  Neb.  463,   110  Am.  St.  Rep.  431,  94  N.  W.   705,  96  N.  W, 


Estate  of  Fleishman.  27 

151;  In  re  Look's  Will,  5  N.  Y.  Supp.  50;  In  re  Williams'  Will,  2 
Conn.  Sur.  579,  15  N.  Y.  Supp.  828,  judgment  affirmed,  64  Hun,  636, 
19  N.  Y.  Supp.  613;  In  re  Nevin's  Will,  4  Misc.  Rep.  22,  24  N.  Y. 
Supp.  838;  Luper  v.  Werts,  19  Or.  ,122,  23  Pac.  850;  In  re  Irvine's 
Estate,  206  Pa.  1,  55  Atl.  795;  Davis  v.  Davis,  6  Lea,  543;  Simmons 
V.  Leonard,  91  Tenn.  183,  30  Am.  St.  Eep.  875,  18  S.  W.  280;  Pol- 
lock V.  Glassel,  2  Gratt.  439;  Rosser  v.  Franklin,  6  Gratt.  1,  52  Am. 
Dec.  97;  Skinner  v.  American  Bible  Soc,  92  Wis.  209,  65  N.  W. 
1037.  Likewise  under  the  custom  prevailing  in  California  before  the 
formation  of  the  state  government,  two  witnesses  were  sufficient: 
Adams  v.  Norris,  64  U.  S.  353,  16  L.  Ed.  539,  1  Fed.  Cas.  No.  51; 
McAll.  253.  In  other  jurisdictions,  however,  the  old  English  rule 
requiring  three  or  four  competent  witnesses  still  prevails:  Fortner 
V.  Wiggins,  121  Ga.  26,  48  S.  E.  694;  Stirling  v.  Stirling,  64 
Md.  138,  21  Atl.  273;  Fleming  v.  Morrison,  187  Mass.  120,  105  Am. 
St.  Rep.  386,  72  N.  E.  499;  Gardiner  v.  Gardiner,  65  N.  H.  230,  19 
Atl.  651,  8  L.  R.  A,  383;  Reynolds  v.  Reynolds,  1  Spear,  253,  40  Am. 
Dec.  599;  Dean  v.  Heirs  of  Dean,  27  Vt.  746;  Blanchard's  Heirs 
V.  Blanchard's  Heirs,  32  Vt.  62.  In  Reynolds  v.  Reynolds,  1  Spear, 
253;  40  Am.  Dec.  599,  the  reason  for  requiring  three  or  four  wit- 
nesses is  said  to  be  to  protect  men  against  fraudulent  wills,  for  con- 
federates in  fraud  usually  conspire  in  pairs  and  can  seldom  trust 
with  safety  any  third  person. 

A  will  executed  with  only  one  witness  is  invalid  (Potts  v.  Felton, 
70  Ind.  166),  and  where  three  witnesses  are  requisite,  a  will  executed 
with  only  two  is  void  as  a  muniment  of  title;  a  judgment  admitting 
it  to  probate  is  a  nullity,  and  cannot  be  validated  by  lapse  of  time: 
Fortner  v.  Wiggins,  121  Ga.  26,  48  S.  E.  694. 

Sufficiency  of  Substantial  Conformity  with  Law. — Only  a  substan- 
tial compliance  with  the  requirements  of  the  law  in  the  attestation  and 
witnessing  of  wills  is  requisite,  and  formalities  are  not  required  which 
the  legislature  has  not  plainly  prescribed:  Montgomery  v.  Perkin,  2 
Met.  (Ky.)  448,  74  Am.  Dec,  419;  Savage  v.  Bulger,  76  S.  W.  361, 
25  Ky.  Law  Rep.  763;  Lewis  v.  Lewis,  11  N.  Y.  220,  13  Barb.  17; 
Hoystradt  v.  Kingman,  22  N.  Y.  372;  Gilbert  v.  Knox,  52  N.  Y.  125; 
Lane  v.  Lane,  95  N.  Y.  494;  In  re  Jones'  Will,  85  N.  Y.  Supp.  294; 
In  re  Williams'  Will,  2  Conn.  Sur.  579,  15  N.  Y.  Supp.  828,  64  Hun, 
636,  19  N.  Y.  Supp.  613;  In  re  Voorhis'  Will,  125  N.  Y.  765,  26  N. 
E.  935,  54  Hun,  637,  7  N.  Y.  Supp.  596;  In  re  Moore's  Will,  109 
App.  Div.  762,  96  N.  Y.  Supp.  729.  "It  is  not  necessary  that  any 
particular  form  be  followed,  or  that  any  rigid  rule  of  construction 
of  the  statute  be  imposed.  Any  other  interpretation  would  be  to 
confine  the  execution  of  testamentary  documents  within  a  narrow 
compass,  and  would  in  many  instances  defeat  the  expressed  inten- 
tions of  a  person":  In  re  Menge's  Will,  13  Misc.  Eep.  553,  35  N. 
Y.  Supp.  493.  Yet,  in  construing  the  statutes  of  wills,  it  is  the 
intention  of  the  legislature  that  must  be  kept  in  mind,  and  not  that 


28  Coffey's  Probate  Decisions,  Vol.  1. 

of  the  testator:  In  re  Blair's  Will,  84  Hun,  581,  32  N.  Y.  Supp.  845; 
In  re  Fish's  Will,  88  Hun,  56,  34  N.  Y.  Supp.  536.  And  in  Savage 
V.  Bowen,  103  Va.  540,  49  S.  E.  668,  it  is  said  that  courts  should 
strictly  follow  the  requirements  of  the  law  in  the  execution  of  wills, 
but  should  not  supplement  those  requirements  with  others. 

Subscription  or  Acknowledgment  by  Testator.— It  is  provided  by 
the  various  statutes  of  wills  in  effect  in  the  several  states  that  a 
will  must  be  signed  or  subscribed  (as  differently  provided)  by  the 
testator  with  his  name  or  mark,  or,  as  permitted  in  some  states,  may 
be  signed  or  subscribed  at  the  direction  of  the  testator  by  another 
in  his  stead. 

Necessity  of  Its  Being  Before  or  to  Witnesses. — In  order  to  validate 
a  will,  either  this  act  of  signing  or  subscribing  must  be  done  in  the 
presence  of  the  witnesses  to  the  will,  or  in  lieu  thereof  the  testator 
must  acknowledge  the  instrument  or  signature  to  the  witnesses:  Yoe 
V.  McCord,  74  111.  33;  Webster  v.  Yorty,  194  111.  408,  62  N.  E.  907; 
Eeed  v.  Watson,  27  Ind.  443;  In  re  Convey 's  Will,  52  Iowa,  197,  2 
N.  W.  1084;  Denton  v.  Franklin,  9  B.  Mon.  28;  Etchison  v.  Etchison, 
53  Md.  348;  Stirling  v.  Stirling,  64  Md.  138,  21  Atl.  273;  Dewey  v. 
Dewey,  1  Met.  (Mass.)  349,  35  Am.  Dec.  367;  Hogan  v.  Grosvenor, 
10  Met.  (Mass.)  54,  43  Am.  Dec.  414;  Nickerson  v.  Buck,  12  Cush. 
332;  Ela  v.  Edwards,  16  Gray,  91;  Mundy  v.  Mundy,  15  N.  J.  Eq. 
290  (so  holding  under  the  law  of  1851,  but  under  the  statute  of  wills 
of  1741  an  acknowledgment  was  not  sufficient) ;  Chaffee  v.  Baptist 
Missionary  Convention,  10  Paige,  85,  40  Am.  Dec.  225;  Baskin  v. 
Baskin,  36  N.  Y.  416;  In  re  Look's  Will,  5  N.  Y.  Supp.  50;  In  re 
Look,  54  Hun,  635,  7  N.  Y.  Supp.  298,  judgment  affirmed,  125  N.  Y. 
762,  27  N.  E.  408;  In  re  Williams'  Will,  2  Conn.  Sur.  579,  15  N.  Y. 
Supp.  828,  judgment  affirmed,  64  Hun,  636,  19  N.  Y.  Supp.  613;  In  re 
Carll's  Will,  38  Misc.  Rep.  471,  77  N.  Y.  Supp.  1036;  Eelbeck's  Dev- 
isees V.  Granberry,  3  N.  C.  232;  Eaudebaugh  v.  Shelley,  6  Ohio  St. 
307;  In  re  Irvine's  Estate,  206  Pa.  1,  55  Atl.  795  (such  is  the  law 
in  case  of  wills  disposing  of  property  to  charitable  or  religious  uses) ; 
Roberts  v.  Welch,  46  Vt.  164;  In  re  Claflin's  Will,  73  Vt.  129,  87 
Am.  St.  Rep.  693,  50  Atl.  815;  Rosser  v.  Franklin,  6  Gratt.  1,  52  Am. 
Dec.  97.  Where  a  testator  makes  his  mark  to  his  will  in  the  presence 
of  the  witnesses,  no  acknowledgment  is  necessary  (Savage  v.  Bulger, 
25  Ky.  Law  Rep.  763,  76  S.  W.  361),  and  where  the  testator  makes 
such  acknowledgment  to  the  witnesses,  they  need  not  see  him  sign 
it  (Yoe  V.  McCord,  74  111.  33;  Webster  v.  Yorty,  194  111.  408,  62  N. 
E.  907;  Etchison  v.  Etchison,  53  Md.  348;  Stirling  v.  Stirling,  64 
Md.  138,  21  Atl.  273;  Nickerson  v.  Buck,  12  Cush.  332;  Cravens  v. 
Faulconer,  28  Mo.  19;  Sisters  of  Charity  v.  Kelly,  67  N.  Y.  409, 
reversing  7  Hun,  290;  Simmons  v.  Leonard,  91  Tenn.  183,  30  Am. 
St.  Rep.  875,  18  S.  W.  280;  Roberts  v.  Welch,  46  Vt.  164;  Skinner  v. 
American  Bible  Soc,  92  Wis.  209,  65  N.  W.  1037),  although  he  signed 
his  mark  only:  In  re  Kane's  Will,  20  N.  Y.  Supp.  123. 


Estate  of  Fleishman.  29 

The  acknowledgment  need  not  be  made  to  both  nor  to  all  wit- 
nesses at  the  same  time:  Chase  v.  Kittredge,  11  Allen,  49,  87  Am. 
Dec.  687;  In  re  Diefenthaler's  Will,  39  Misc.  Eep.  765,  80  N.  Y. 
Supp.  1121.  Moreover,  where  the  witnesses  are  in  the  presence  of 
the  testator  while  he  signs  the  will,  it  is  immaterial  that  the  wit- 
nesses do  not  actually  see  him  sign:  Etchison  v.  Etchison,  53  Md. 
348;  In  re  Bedell's  Will,  2  Conn.  Sur.  328,  12  N.  Y.  Supp.  96;  Sim- 
mons V.  Leonard,  91  Tenn.  183,  30  Am.  St.  Eep.  875,  18  S.  W.  280. 
But  if  the  witnesses  are  not  present  at  the  time  of  the  signing  of 
the  testator's  will,  and  there  is  no  subsequent  acknowledgment  suf- 
ficient to  fulfill  the  requirements  of  the  law,  the  will  is  not  executed 
at  all:  Sisters  of  Charity  v.  Kelly,  67  N.  Y.  409;  Luper  v.  Werts, 
19  Or.  122,  23  Pac.  850;  Eichardson  v.  Orth,  40  Or.  252,  66  Pac.  925, 
69  Pac.  455;  Eoberts  v.  Welch,  46  Vt.  164. 

Object  of  Requirement. — The  object  of  the  foregoing  requirement 
in  the  execution  of  will  is  to  identify  and  authenticate  the  instru- 
ment as  one  actually  subscribed  by  the  testator:  Baskin  v.  Baskin, 
36  X.  Y.  416. 

Sufficiency  of  Acknowledgment. — There  is  a  diversity  of  decision 
as  to  the  sufficiency  of  an  acknowledgment  to  the  witnesses,  depend- 
ing upon  the  terms  of  the  statutes  of  wills  in  the  respective  juris- 
dictions, some  of  them  providing  that  the  testator  must  acknowl- 
edge the  will  to  be  his  act  and  deed,  and  others  providing  that  he 
must  acknowledge  his  signature  to  the  will  to  be  his  act  and  deed.  In 
Hobart  v.  Hobart,  154  111.  610,  45  Am.  St.  Eep.  151,  39  N.  E.  581,  affirm- 
ing 53  111.  App.  133,  the  court  points  out  and  comments  on  this  distinc- 
tion, saying  in  substance:  In  England  and  in  New  York,  and  perhaps 
some  other  of  the  states,  the  statute  requires  that  there  must  be  an  ac- 
knowledgment of  the  signature.  Decisions  based  on  this  provision  of 
law  hold  in  substance  that  there  is  not  a  sufficient  acknowledgment  of 
the  signature  by  the  testator  when  he  produces  a  will  and  requests 
the  witnesses  to  sign  it,  unless  his  signature  is  visibly  apparent  on 
the  face  of  the  paper,  and  is  seen,  or  can  be  seen,  by  the  witnesses, 
especially  if  he  does  not  explain  the  instrument  to  them.  These  de- 
cisions are  not,  however,  applicable  where  the  statute  merely  re- 
quires that  the  testator  acknowledge  the  will  or  codicil  to  be  his  act 
and  deed,  and  does  not  specially  and  in  terms  require  the  signature  to 
be  acknowledged.  A  man  may  acknowledge  an  entire  written  in- 
strument to  be  his  act  and  deed  without  necessarily  calling  the  at- 
tention of  those  before  whom  he  produces  it  to  any  particular  part  of 
the  instrument.  But  if  he  is  required  to  make  acknowledgment  of  a 
specified  part  of  it,  it  may  be  requisite  that  attention  should  be  di- 
rected to  that  part. 

Thus  where  the  law  is  that  the  will  must  be  acknowledged,  it  is 
not  necessary  that  the  witnesses  see_  the  signature  of  the  testator 
to  the  will,  or  that  the  testator  acknowledge  his  signature,  or  that 
the   witnesses    know    that    the    instrument   is   a   will,   but    where    the 


30  Coffey's  Probate  Decisions,  Vol.  1. 

testator  acknowledges  to  the  witnesses  the  execution  of  the  instru- 
ment by  himself  the  requirement  of  the  law  is  satisfied:  Gould  v. 
Chicago  Theological  Seminary,  189  111.  282,  59  N.  E.  536;  In  re  Barry's 
Will,  219  111.  391,  76  N.  E.  577;  Simmons  v.  Leonard,  91  Tenn.  183, 
30  Am.  St.  Eep.  875,  18  S.  W.  280;  Rosser  v.  Franklin,  6  Gratt.  1, 
52  Am.  Dec.  97.  Thus  a  declaration  by  the  testator  to  the  wit- 
nesses that  the  instrument  is  his  last  will  (Dewey  v.  Dewey,  1  Met. 
(Mass.)  349,  35  Am.  Dec.  367;  Nickerson  v.  Buck,  12  Gush.  332),  or 
that  it  is  his  act  and  deed  (In  re  Barry's  Will,  219  111.  391,  76  N. 
E.  577;  Rosser  v.  Franklin,  6  Gratt.  1,  52  Am.  Dec.  97),  or  a  request 
by  the  testator  to  the  witnesses  to  attest  his  last  will,  he  producing 
it  for  their  signature  (Tudor  v.  Tudor,  17  B.  Mon.  383;  Dewey  v. 
Dewey,   1   Met.    (Mass.)    349,   35   Am.   Dec.    367;    Nickerson   v.   Buck, 

12  Gush.  332;  Simmons  v.  Leonard,  91  Tenn.  183,  30  Am.  St.  Rep. 
875,  18  S.  W.  280),  is  sufficient.  Moreover,  the  declaration  or  re- 
quest need  not  be  spoke'n  by  the  testator  himself,  but  may  be  made 
by  another  in  his  presence,  he  himself  remaining  silent,  where  it 
appears  from  the  surrounding  circumstances  that  the  other  was  act- 
ing for  the  testator  at  his  instance:  Denton  v.  Franklin,  9  B.  Mon. 
28.  See,  also,  to  same  effect,  In  re  Kane's  Will,  20  N.  Y.  Supp.  123. 
Furthermore,  this  acknowledgment  need  not  be  made  in  language 
at  all,  but  any  act,  sign,  or  gesture  of  the  testator  which  indicates 
an  acknowledgment  of  the  will  with  unmistakable  certainty,  will 
suffice:  Gould  v.  Chicago  Theological  Seminary,  189  111.  282,  59  N. 
E.  536;  In  re  Barry's  Will,  219  Dl.  391,  76  N.  E.  577;  Ela  v.  Ed- 
wards, 16  Gray,  91;  Ludlow  v.  Ludlow,  36  N.  J.  Eq.  597.  Thus 
where  the  testator,  having  heard  read  the  attesting  clause  of  his 
will  reciting  that  he  had  executed  the  instrument  as  his  will,  handed 
the  subscribing  witnesses  the  pen  and  saw  them  sign  it,  but  uttered 
not   a  word,  he   acknowledged  it   as   satisfactorily   as  though   he   had 

said,   "I,   ,   do   acknowledge   this   instrument   to   be   my   last 

will  and  testament":  Allison  v.  Allison,  46  111.  61,  92  Am.  Dec. 
237. 

Where,  however,  the  law  is  that  the  signature  to  the  will  must 
be  acknowledged,  it  is  requisite  that  the  testator's  signature  affixed 
to  the  will  be  shown  to  the  witnesses  and  identified  and  recognized 
by  the  testator,  and  in  some  apt  and  proper  manner  acknowledged 
by  him  to  be  his  signature:  Lewis  v.  Lewis,  11  N.  Y.  220,  affirming 

13  Barb.  17;  Baskin  v.  Baskin,  36  N.  Y.  416;  In  re  Mackey's  Will, 
110  N.  Y.  611,  6  Am.  St.  Rep.  409,  18  N.  E.  433,  1  L.  R.  A.  491;  In  re 
Eakin's  Estate,  13  Misc.  Rep.  557,  35  N.  Y.  Supp.  489;  Raudebaugh 
v.  Shelley,  6  Ohio  St.  307.  Thus  where  at  the  time  a  witness  sub- 
scribed a  will  she  had  just  entered  the  house  where  the  testator 
was,  and  as  she  entered  said  to  the  testator,  "Are  you  making  your 
will?"  to  which  he  responded,  "Yes,"  and  added  that  he  wanted 
her  to  put  her  name  to  the  paper  he  had  in  his  hand  at  the  place 
he  pointed  out,  which  she  did,  there  is  no  sufficient  acknowledgment 


Estate  of  Fleishman.  31 

of  his  signature  to  the  will:  In  re  Simmons'  Will,  56  Hun,  642,  9 
N.  Y.  Supp.  352,  affirmed  without  opinion,  124  N.  Y.  663,  27  N.  E. 
413.  The  exhibition,  however,  of  a  will  and  of  the  testator's  sig- 
aature  attached  thereto,  made  by  the  testator  to  a  witness,  and  his 
,ieclaration  to  the  witness  that  it  was  his  last  will  and  testament 
and  his  request  to  the  witness  to  attest  the  same,  constitute  together 
a  sufficient  acknowledgment  by  the  testator  of  the  signature  to  the 
will:  Baskin  v.  Baskin,  36  N.  Y.  416,  48  Barb.  200  (Parker  and 
Grover,  J  J.,  dissenting);  Willis  v.  Mott,  36  N.  Y.  486;  Sisters  of 
Charity  v.  Kelly,  67  N.  Y.  409;  In  re  Phillips,  98  N.  Y.  267;  In  re 
Lang's  Will,  9  Misc.  Rep.  521,  30  N.  Y.  Supp.  388;  In  re  Aker's 
Will,  74  App.  Div.  461,  77  N.  Y.  Supp.  643. 

Request  to  Witnesses  to  Sign. — In  some  states  there  must  be  a  re- 
quest from  the  testator  to  the  witnesses  to  sign  his  will:  Mundy  v. 
Mundy,  15  N.  J.  Eq.  290;  In  re  Williams'  Will,  2  Conn.  Sur.  579,  15 
N.  Y.  Supp.  828,  64  Hun,  636,  19  N.  Y.  Supp.  613;  Vogel  v.  Lehritter, 
139  N.  Y.  223,  34  N.  E.  914.  "The  object  of  the  statute  is  that  an 
officious  signing  by  the  witnesses,  without  any  privity  with  the  tes- 
tator, should  not  be  recognized  as  sufficient":  Peck  v.  Gary,  27  N. 
Y.  9,  84  Am.  Dec.  220,  affirming  38  Barb.  77.  The  manner  and  form 
in  which  the  request  must  be  made,  and  the  evidence  by  which  it 
must  be  proved,  are  not,  however,  prescribed,  and  no  precise  form 
of  words  addressed  to  each  of  the  witnesses  at  the  very  time  of 
attestation  is  required;  but  any  communication  importing  such  re- 
quest, addressed  to  one  of  the  witnesses  in  the  presence  of  the  other, 
and  which,  by  a  just  construction  of  all  the  circumstances,  is  in- 
tended for  both,  is  sufficient.  So  where  one  of  the  subscribing  wit- 
nesses, in  the  presence  of  the  other,  asked  the  testator  if  he  wished 
him  to  sign  or  witness  the  paper  as  his  will,  and  the  testator  answered 
in  the  affirmative,  and  both  thereupon  subscribed  the  will,  the  publi- 
cation is  sufficient:  Coffin  v.  Coffin,  23  N.  Y.  9,  80  Am.  Dec.  235. 
See,  also.  In  re  Kane 's  Will,  20  N.  Y.  Supp.  123.  Likewise  where, 
before  the  witnesses  signed  a  will,  the  draftsman  said  to  the  testator, 
"Here  are  M.  and  H.;  do  you  wish  them  to  act  as  witnesses  to  this, 
your  will?"  to  which  he  replied,  "Yes,  I  do,"  and  then  subscribed 
himself,  after  which  the  witnesses  did,  the  request  is  sufficient:  In  re 
Menge's  Will,  13  Misc.  Rep.  553,  35  N.  Y.  Supp.  493.  Moreover, 
where  the  words  of  request  are  made  in  the  presence  of  the  testator, 
they  may  proceed  from  another  than  the  testator,  and  will  be  re- 
garded as  those  of  the  testator,  although  the  testator  said  not  one 
word  and  did  not  indicate  his  acquiescence  by  act  or  motion,  pro- 
vided that  the  circumstances  show  that  he  adopted  them  and  that 
the  party  speaking  them  was  acting  for  him  with  his  assent:  Bundy 
V.  McKnight,  48  Ind.  502;  In  re  Hull's  W^ill,  117  Iowa,  738,  89  N. 
W.  979;  In  re  Murphy's  Will,  15  Misc.  Rep.  208,  37  N.  Y.  Supp. 
223;  Cheatham  v.  Hatcher,  30  Gratt.  56,  32  Am.  Rep.  650.  So  wliorc 
the  person  who  had  drawn  up  a  will  for  a  testator  and  was  attending 


'32  Coffey's  Probate  Decisions,  Vol.  1. 

to  his  execution  for  him,  they  both  being  in  a  bank,  called  up  three 
persons  who  were  in  their  hearing  to  witness  the  will,  which  they 
did,  the  subscribing  by  them  was  done  at  the  testator's  request: 
Peck  V.  Gary,  27  N.  Y.  9,  84  Am.  Dec.  220,  38  Barb.  77.  Likewise, 
where  counsel  who  drew  a  will  for  a  testator  and  acted  as  witness 
with  the  consent  of  the  testator  requested  his  stenographer  to  attest 
as  a  witness,  such  request  being  made  in  an  adjoining  room  out  of 
the  hearing  of  the  testator,  after  which  the  witness  entered  the 
room  where  the  testator  was  and  signed  her  name  in  the  testator's 
presence,  nothing  further  being  said  to  her  and  no  objection  being 
made  by  the  testator,  the  request  to  the  witness  is  sufficient:  Ames 
V.  Ames,  40  Or.  495,  67  Pac.  737. 

In  other  states,  the  statutes  of  wills  there  prevailing  do  not  re- 
quire that  a  testator  should  ask  the  witnesses  to  his  will  to  attest  it; 
his  assent,  either  express  or  implied,  is  sufficient;  yet  the  act  must 
:be  done  with  his  knowledge,  and  not  in  a  clandestine  or  fraudulent 
manner:  Higgins  v.  Carlton,  28  Md.  115,  92  Am.  Dec.  666;  Etchison 
V.  Etchison,  53  Md.  348;  In  re  Meurer's  Will,  44  Wis.  392,  28  Am. 
liep.  591. 

In  yet  other  states,  it  is  immaterial  whether  or  not  the  witnesses 
to  a  will  attested  it  at  the  request  of  the  testator:  Sandley  v.  Moss, 
114  111.  App.  612;  Dyer  v.  Dyer,  87  Ind.  13;  In  re  Allen,  25  Minn. 
.39;  Savage  v.  Bowen,  103  Va.  540,  49  S.  E.  668.  See,  also,  Huff  v. 
Huff,  41  Ga.  696,  where  the  court  held  that  the  law  implies  a  re- 
•quest  from  the  testator  to  the  witnesses  to  attest  hia  will  from  their 
iconsummation  of  the  act,  that  no  special  request  by  the  testator  is 
.necessary  to  constitute  the  attesting  witnesses  competent,  that  if  he 
■does  not  object  his  assent  is  equivalent  to  a  request  and  satisfies  the 
requirements  of  the  law,  and  that  an  instruction  that  if  the  jury 
believed  from  the  evidence  that  one  of  the  witnesses  was  suggested 
to  the  testator  as  a  witness  to  his  will,  and  the  testator  assented  to 
such  suggestion,  such  assent  was,  in  law,  a  request,  or  equivalent  to 
-a  request,  is  not  erroneous. 

Publication,  or  Declaration  of  Character  of  Instrument. — In  some 
states  it  is  prerequisite  to  the  execution  of  a  will  that  there  be  some 
•declaration  by  the  testator  to  the  witnesses  that  the  instrument  at- 
tested by  them  is  his  last  will  and  testament:  Cravens  v.  Faulconer, 
28  Mo.  19;  Mundy  v.  Mundy,  15  N.  J.  Eq.  290;  Ludlow  v.  Ludlow, 
36  N.  J.  Eq.  597;  Clark  v.  Clark,  64  N.  J.  Eq.  361,  52  Atl.  225; 
Bemsen  v.  Brinckerhoff,  26  Wend.  325,  37  Am.  Dec.  251,  affirming 
Erinckerhoff  v.  Eemsen,  8  Paige,  488;  Seymour  v.  Van  Wyck,  6  N.  Y. 
120;  Lewis  v.  Lewis,  11  N.  Y.  220,  13  Barb.  17;  Coffin  v.  Coffin, 
■23  N.  Y.  9,  80  Am.  Dec.  235;  Baskin  v.  Baskin,  36  N.  Y.  416;  Gilbert 
V.  Knox,  52  N.  Y.  125;  In  re  Look's  Will,  5  N.  Y.  Supp.  50;  In  re 
Look,  54  Hun,  635,  7  N.  Y.  Supp.  298,  judgment  affirmed,  125  N.  Y. 
762,  27  N.  E.  408;  In  re  Dale's  Will,  56  Hun,  169,  9  N.  Y.  Supp. 
.■396,  affirmed  without  opinion,  134  N.  Y.  614,  32  N.  E.  649;  In  re 
Williams'  Will,  2   Conn.  Sur.  579,   15  N.  Y.  Supp.  828,  64  Hun,  636, 


Estate  of  Fleishman.  33 

19  N.  Y.  Supp.  613;  Vogel  v.  Lehritter,  135  N.  Y.  223,  34  N.  E.  914; 
In  re  Carll's  Will,  38  Misc.  Eep.  471,  77  N.  Y.  Supp.  1036;  In  re 
Moore's  Will,  109  App.  Div.  762,  96  N.  Y.  Supp.  729  (requisite  iu 
case  of  olographic  wills).  Such  declaration  is  what  is  known  in 
technical  language  as  a  publication  of  a  will  (Eemsen  v.  Brincker- 
hoff,  26  Wend.  325,  37  Am.  Dec.  251),  and  without  it  the  will  is 
invalid:  Peck  v.  Gary,  27  N.  Y.  9,  84  Am.  Dec.  220,  affirming  38 
Barb.  77.  Publication  "is  important,  first,  in  denoting  that  the 
testator  knows  the  nature  of  the  instrument  he  is  executing,  and  to 
check  any  deception  upon  him.  In  the  second  place,  and  also  in 
Older  that  there  may  be  no  imposition  perpetrated,  it  is  important 
that  the  subscribing  witnesses  understand  that  they  are  attesting  the 
signature  to  the  will  of  the  person  at  whose  request  they  severally 
subscribe  their  names.  They  realize,  if  the  document  is  a  will,  that 
they  are  expected  to  remember  what  occurred  at  its  execution  and 
be  ready  to  vouch  for  its  validity  in  court.  The  declaration  of  the 
testator  that  the  instrument  is  his  will  is  not  solely,  therefore,  for 
the  purpose  of  showing  that  he  knew  that  he  was  executing  his 
will":  In  re  Moore's  Will,  109  App.  Div.  762,  96  N.  Y.  Supp.  729. 
See,  also,  Baskin  v.  Baskin,  36  N.  Y.  416;  Gilbert  v.  Knox,  52  N.  Y. 
125. 

A  substantial  compliance  with  the  requirement  of  publication  is 
not  only  requisite  but  sufficient:  In  re  Beckett,  103  N.  Y.  167,  8  N. 
E.  506;  In  re  Dale's  Will,  56  Hun,  169,  9  N.  Y.  Supp.  396,  affirmed 
without  opinion,  134  N.  Y.  614,  32  N.  E.  649.  "It  is  a  substantial 
compliance  with  the  statute,  if  in  some  way  or  mode  the  testator 
indicates  that  the  instrument  that  the  witnesses  are  requested  to 
subscribe  as  such  is  intended  or  understood  by  him  to  be  his  executed 

will The    legislature    only    meant    that    there    should    be    some 

communication  to  the  witnesses  indicating  that  the  testator  intended 
to  give  effect  to  the  paper  as  his  will,  and  that  any  communication 
of  this  idea  or  to  this  effect  will  meet  the  object  of  the  statute; 
that  it  is  enough  if  in  some  way  or  mode  the  testator  indicates 
that  the  instrument  the  witnesses  are  requested  to  subscribe  as  such 
is  intended  or  understood  by  him  to  be  his  will.  The  word  'declare' 
is  said  to  signify  'to  make  known,  to  assert  to  others,  to  show 
forth';  and  this  in  any  manner,  cither  by  words  or  acts,  writing  or 
in  signs;  in  fine,  that  to  declare  to  a  witness  that  the  instrument 
subscribed  was  the  testator's  will  must  mean  to  make  it  distinctly 
known  to  him  by  some  assertion  or  by  clear  assent  in  words  or 
signs":  In  re  Kane's  Will,  20  N.  Y.  Supp.  123.  See,  also,  Cravens 
V.  Faulconer,  28  Mo.  19;  Reinsen  v.  Brinckerhoff,  26  Wend.  325,  37 
Am.  Dee.  251;  In  re  Murphy's  Will,  15  Misc.  Rep.  208,  37  N.  Y. 
Supp.  223;  In  re  Cavil's  Will,  38  Misc.  Rep.  471,  77  N.  Y.  Supp. 
103(5;  In  re  Moore's  Will,  109  App.  Div.  762,  96  N.  Y.  Supp.  729.  In 
Rp  Beckett,  103  N.  Y.  167,  8  N.  E.  506,  the  court  further  says: 
-"Where  the  testator  cannot  speak  at  all,  or  only  with  difficulty,  he 
Prob.  Dec,  Vol.  I — 3 


34  Coffey  ^s  Probate  Decisions,  Vol.  1. 

may  communicate  his  knowledge  by  signs  or  by  words  to  some  listen- 
ers unintelligible.  He  must  communicate  it,  however;  but  if  he  does 
that  in  a  manner  capable  of  conveying  to  the  minds  of  the  witnesses 
his  own  present  consciousness  that  the  paper  being  executed  is  a  will, 
that  must  necessarily  be  sufficient."  Likewise  in  Mundy  v.  Mundy, 
15  N.  J.  Bq.  290,  the  court  holds  that  the  provision  of  the  New 
Jersey  statute  of  wills  of  1851  that  the  writing  must  be  declared 
by  the  testator  to  be  his  last  will  and  testament  requires  no  more 
formality  than  the  act  of  1741  which  provided  that  the  will  must 
be  published.  So  where  one  of  the  subscribing  witnesses  in  the 
presence  of  the  other  asked  the  testator  if  he  wished  him  to  sign 
or  witness  the  paper  as  his  will,  and  the  testator  answered  in  the 
affirmative,  the  publication  was  sufficient  as  to  both  witnesses:  Coffin 
V.  Coffin,  23  N.  Y.  9,  80  Am.  Dec.  235.  Or,  where  the  draftsman  of 
a  will  asked  the  testatrix  "if  she  wanted  B  and  him  to  witness  the 
will,"  which  then  lay  before  them  with  the  subscription  of  the  testa- 
trix upon  it,  and  she  answered  in  the  affirmative,  the  publication  is 
sufficient:  In  re  Menge's  Will,  13  Misc.  Eep.  553,  35  N.  Y.  Supp.  493. 
To  the  same  effect,  In  re  Murphy's  Will,  15  Misc.  Eep.  208,  37  N. 
Y.  Supp.  223.  And  where  it  was  understood  by  the  witnesses  to  a 
codicil  when  they  were  sent  for  that  it  was  to  witness  a  codicil,  th< 
statement  of  the  testator  upon  their  arrival,  "It  lays  there  on  the 
desk;  I  have  signed  it,  and  there  are  only  two  lines  left;  you  sign 
it  on  one,  and  Frank  on  the  other,"  constitutes  a  sufficient  publica- 
tion: In  re  Carll's  Will,  38  Misc.  Eep.  471,  77  N.  Y.  Supp.  1036. 
Likewise  where  the  testator  knew  and  the  witnesses  understood  from 
his  acts  and  conduct,  as  he  intended  they  should,  that  the  instru- 
ment then  executed  was  his  will,  there  is  a  sufficient  publication: 
Lane  v.  Lane,  95  N.  Y.  494.  Moreover,  the  fact  that  the  testatrix's 
act  of  declaration  of  an  instrument  as  her  will  included  a  reference 
to  a  previous  conversation  between  her  and  the  attesting  witnesses, 
which  reference  was  of  such  a  character  that  without  it  there  would 
be  no  publication  of  the  will,  does  not  render  the  publication  in- 
sufficient: In  re  Beckett,  103  N.  Y.  167,  8  N.  E.  506.  On  the  other 
hand  where  the  messenger  who  called  a  witness  told  him  that  he 
was  wanted  to  subscribe  a  will,  but  while  he  was  in  the  room  sub- 
scribing it  nothing  was  said  to  him  of  the  nature  of  the  paper,  there 
is  no  sufficient  declaration  that  the  paper  was  a  will:  In  re  Nevin's. 
Will,  4  Misc.  Eep.  22,  24  N.  Y.  Supp.  838. 

Again,  it  is  not  necessary  that  the  testator  should,  by  his  own 
words  or  acts,  publish  the  will,  for  this  in  some  cases  might  be 
impossible  through  sickness  or  bodily  infirmity,  but  it  may  be  done 
by  another  in  his  presence  and  hearing,  acting  for  him  with  his 
assent,  he  being  able  to  dissent  but  not  dissenting:  Mundy  v.  Mundy,. 
15  N.  J.  Eq.  290;  Ludlow  v.  Ladlow,  36  N.  J.  Eq.  597;  Gilbert  v. 
Knox,  52  N.  Y.  125. 

The  act  of  publication  is  not  complete  until  the  witnesses  under- 
stand from  the  testator  that  the  instrument  they  attest  is  a  will:   In 


Estate  of  Fleishman.  35 

re  Moore's  Will,  109  App.  Div.  762,  96  N.  Y.  Supp.  729.  And  "it 
will  not  suffice  that  the  witnesses  have  elsewhere  and  from  some 
other  sources  learned  that  the  document  which  they  are  called  to 
attest  is  a  will,  or  that  they  suspect  or  infer  from  the  circumstances 
and  occasion  that  such  is  the  character  of  the  paper.  The  fact  must 
in  some  manner,  although  no  particular  form  of  words  is  required,  be 
declared  by  the  testator  in  their  presence,  that  they  may  not  only 
know  the  fact,  but  that  they  may  know  it  from  him,  and  that  he 
understands  it,  and,  at  the  time  of  its  execution,  which  includes  pub- 
lication, designs  to  give  effect  to  it  as  his  will":  Lewis  v.  Lewis, 
11  N.  Y.  220,  13  Barb.  17.  To  the  same  effect,  see  Gilbert  v.  Knox, 
52  N.  Y.  125. 

While  olographic  wills  are  not  recognized  in  New  York  as  such, 
yet  where  a  will  is  wholly  in  the  testatrix's  own  handwriting,  "crit- 
icism of  the  terms  and  manner  of  what  is  claimed  to  have  been  a 
sufficient  publication  need  not  be  so  close  or  severe  as  where  the 
question  whether  the  testatrix  knew  that  she  was  executing  a  will 
depends  solely  upon  the  fact  of  publication":  In  re  Beckett,  103  N. 
Y.  167,  8  N.  E.  506.  To  the  same  effect,  In  re  Aker's  Will,  74  App. 
Div.  461,  77  N.  Y.  Supp.  643;  In  re  Moore's  Will,  109  App.  Div.  762, 
96  N.  Y.  Supp.  729. 

In  other  states  no  declaration  to  the  witnesses  or  otherwise  of  the 
nature  of  the  document  the  witnesses  are  called  upon  to  and  actually 
do  witness  is  requisite,  and  the  fact  that  its  nature  and  character  is 
unknown  to  either  or  all  of  them  docs  not  impair  its  validity:  Ap- 
peal of  Canada,  47  Conn.  450,  holding  it  error  to  instruct  the  jury  that 
it  was  necessary  that  the  subscribing  witness  of  a  will  should  know 
that  the  instrument  which  he  subscribed  was  a  will:  Dickie  v.  Carter, 
42  111.  376;  In  re  Storey's  Will,  20  111.  App.  183;  Kobinson  v,  Brewster, 
140  111.  649,  33  Am.  St.  Eep.  265,  30  N.  E.  683;  Webster  v.  Yorty,  194 
111.  408,  62  N.  E.  907;  In  re  Barry's  Will,  219  111.  391,  76  N.  E.  577; 
Brown  v.  McAlister,  34  Ind.  375;  Turner  v.  Cook,  36  Ind.  129;  In  re 
Hulse's  Will,  52  Iowa,  662,  3  N.  W.  734,  holding  that  a  statutory  re- 
quirement that  a  will  be  "witnessed"  does  not  require  its  publica- 
tion; Eay  V.  Walton,  2  A.  K.  Marsh.  71;  Flood  v.  Pragoff,  79  Ky.  607, 
relating  to  a  codicil;  Osborn  v.  Cook,  11  Cush.  532,  59  Am.  Dec.  155, 
holding  that  while  it  was  to  some  extent  the  usage  of  courts  of  pro- 
bate to  inquire  of  the  witnesses  to  a  will  whether  the  testator  had 
declared  the  instrument  to  be  his  will,  and  while  such  declaration 
frequently  makes  a  part  of  the  attestation  clause  of  wills,  it  is  unnec- 
essary; Ela  V.  Edwards,  16  Gray,  91;  Chase  v.  Kittredge,  11  Allen,  49, 
87  Am.  Dec.  687;  Watson  v.  Pipes,  32  Miss.  451;  Luper  v.  Werts,  19 
Or.  122,  23  Pac.  850;  Skinner  v.  Lewis,  40  Or.  571,  62  Pac.  523,  67 
Pac.  951;  Loy  v.  Kennedy,  1  Watts  &  S.  396;  Appeal  of  Linton,  104 
Pa.  228,  in  case  of  wills  of  married  women;  Dean  v.  Heirs  of  Dean,  27 
Vt.  746;  In  re  Claflin's  Will,  75  Vt.  19,  52  Atl.  1053,  58  L.  R.  A.  261. 
Compare,  however.  In  re  Claflin's  Will,  73  Vt.   129,  87  Am.  St.  Rep. 


36  Coffey's  Probate  Decisions,  Vol.  1. 

693,  50  Atl.  815;  Beane  v.  Yerby,  12  Gratt.  239;  Allen  v.  Griffin,  69 
Wis.  529,  35  N.  W.  21;  overruling  In  re  Downie's  Will,  42  Wis.  66. 
In  a  few  decisions  the  superfluousness  of  a  declaration  of  the  char- 
acter of  the  instrument  is  explained  or  excused  on  the  ground  that 
the  writing  out  and  signing  of  the  will  on  paper  by  the  testator  con- 
stitutes a  sufficient  publication  thereof:  Eay  v.  Walton,  2  A.  K. 
Marsh.  71;  Watson  v.  Pipes,  32  Miss.  451;  Dean  v.  Heirs  of  Dean,  27 
Vt.  746.  And  in  Loy  v.  Kennedy,  1  Watts  &  S.  396,  the  court  says: 
"To  require  more  [in  the  execution  of  a  will]  would  frequently  do 
mischief,  as  a  testator  is  frequently  disposed  to  conceal  the  fact  that 
the  instrument  executed  is  a  will. ' ' 

Where,  however,  after  subscription  of  a  will  by  a  subscribing  wit- 
ness, the  testator  declares  to  the  witness  that  it  was  ' '  a  fake  will, 
made  for  a  purpose,"  his  attestation  and  subscription  of  the  will  is 
invalid:  Fleming  v.  Morrison,  187  Mass.  120,  105  Am.  St.  Eep.  386,  72 
N.  E.  499. 

Necessity  of  Signing  and  Attestation  by  Witnesses. — In  most  states 
it  is  necessary  that  the  witnesses  to  a  will  subscribe  and  attest  the 
same:  See  the  statutes  of  the  various  states.  And  in  Iowa,  under  a 
statute  requiring  a  will  to  be  in  writing  and  "witnessed"  by  two 
witnesses,  the  court  has  held  it  necessary  to  the  validity  of  a  will 
that  the  witnesses  should  "subscribe"  the  will.  For,_as  there  said  by 
the  court,  "to  say  that  a  writing  is  witnessed  includes,  as  it  seems 
to  us,  almost  necessarily,  the  idea  that  it  is  witnessed  in  writing,  and 
to  exclude  the  conclusion  that  it  is  witnessed  in  any  other  manner. 
....  This  is  sustained  by  the  thought  that  the  witnesses  to  a  will 
become  such  from  the  time  they  thus  sign  it.  They  testify  from  that 
moment,  and  hence,  though  they  should  die  before  the  testator  or  be- 
fore the  probate  of  the  will,  it  is  still  good If  without  anything 

more  than  mere  memory  to  identify  the  instrument,  disregarding  the 
consideration  that  the  testator  deliberately  and  formally  made  his 
will,  desiring  and  wishing  particular  persons  to  attest  it  in  writing, 
these  most  solemn  of  all  writings  may  be  established  by  the  recol- 
lection of  witnesses  months  and  years  afterward,  immeasurable  would 
be  the  temptations  to  frauds  and  perjuries":  In  re  Boyens'  Will,  23 
Iowa,  354.  In  Pennsylvania,  however,  where  the  statute  of  wills  re- 
quires the  signature  of  the  testator  to  be  proved  by  at  least  two  com- 
petent witnesses,  neither  subscribing  nor  attesting  witnesses  are  neces- 
sary to  give  validity  to  a  will:  Hight  v.  Wilson,  1  Dall.  94,  1  L.  Ed. 
51;  In  re  Irvine's  Estate,  206  Pa.  1,  55  Atl.  795.  And  under  the 
custom  prevailing  in  California,  before  the  formation  of  the  state 
government,  to  validate  a  will  it  was  only  necessary  that  the  testator 
and  the  witnesses  should  alike  hear  and  understand  the  testament,  and 
that  under  such  conditions  its  publication  as  the  will  of  the  testator 
should  be  made.  It  might  be  drawn  in  another  language  from  that 
understood  by  the  testator  and  witnesses,  the  notary  drawing  it  under- 
standing both,  and  the  witnesses  understanding  the  language  of  the 


Estate  op  Fleishman.  37 

testator:  Adams  v.  Norris,  64  U.  S.  353,  16  L.  Ed.  539;  affirming  same 
case  under  name  of  Adams  v.  De  Cook,  1  Fed.  Cas.  No.  51,  McAll.  253. 

Mode  of  Subscription. — A  witness  to  a  will  may  sufficiently  sub- 
scribe a  will  by  making  his  mark  thereon:  In  re  Pope's  Will,  139 
N.  'C.  484,  111  Am.  St.  Eep.  813,  52  S.  E.  235;  Ford  v.  Ford,  7  Humph. 
92.  Moreover,  a  witness'  name  may  be  written  thereon  by  another 
at  his  instance  and  direction,  and  in  his  presence:  Upchurch  v.  Up- 
church,  16  B.  Mon.  102;  In  re  Pope's  Will,  139  N.  C.  484,  111  Am.  St. 
Eep.  813,  52  S.  E.  235;  Simmons  v.  Leonard,  91  Tenn.  183,  30  Am.  St. 
Eep.  875,  18  S.  W.  280.     For  such  subscription  by  another  "furnishes 

as   much   assurance   of   identity   as   the   making   of   a   mark A 

literal  adherence  to  the  words  of  the  statute  would  operate  harshly, 
and  exclude  all  persons  unable  to  write  their  names,  as  witnesses  to 
wills,  however,  worthy  of  credence.  A  more  liberal  construction  will 
as  effectually  accomplish  the  ends  of  the  statute,  and  not  violate  its 
language":  Upchurch  v.  Upchurch,  16  B.  Mon.  102.  In  North  Caro- 
lina, it  is  held  that  the  fact  that  the  witness  himself  is  able  to  write 
does  not  impair  the  validity  of  such  signature  by  another  (In  re 
Pope's  Will,  139  N.  C.  484,  111  Am.  St.  Eep.  813,  52  S.  E.  235);  but 
in  Tennessee,  it  is  held  that  where  the  witness'  name  is  written  by 
another,  the  witness  himself  must  countersign  it  with  his  mark  or 
other  identifying  sign,  and  further,  that  a  competent  witness  cannot 
effectively  procure  his  signature  to  be  made  thereon  by  one  incom- 
petent to  have  himself  been  a  witness  to  a  will,  for  "to  permit  the 
devisee  to  write  the  name  of  the  subscribing  witness  would  expose  the 
will  to  little  less  danger  of  wrongful  alteration  and  substitution  than 
would  exist  if  the  devisee  himself  were  allowed  to  become  the  wit- 
ness; the  same  evil  consequences  would  follow  in  the  one  case  as  in 
The  other.  If  he  may  sign  the  name  of  one  subscribing  witness,  he 
may  sign  the  name  of  both,  and  in  that  way  become  a  more  potent 
factor  in  the  execution  and  probate  of  the  will  than  if  he  were  al- 
lowed to  become  a  subscribing  witness  himself.  He  may  not  lawfully 
take  the  matter  so  largely  into  his  own  hands.  A  proper  construction 
of  the  statute  excludes  the  devisee  from  the  doing  of  any  act,  even 
for  the  subscribing  witness,  which  is  essential  to  a  valid  subscrip- 
tion": Simmons  v.  Leonard,  91  Tenn.  183,  30  Am.  St.  Eep.  875,  18 
S.  W.  280. 

In  Ee  Walker,  110  Cal.  387,  52  Am.  St.  Eep.  104,  42  Pac.  815,  30 
L.  E.  A.  460  (McFarland,  Garoutte,  and  Van  Fleet,  JJ.,  dissenting), 
the  court  held  that  a  witness  could  sign  only  in  one  way,  viz.,  by 
affixing  his  name;  and,  accordingly,  that  where  a  witness,  inadvert- 
ently signed  his  name  as  "C.  G.  Walker,"  instead  of  "C.  G.  Warren," 
the  will  was  invalidated. 

Place  on  Will  of  Subscription. — In  the  absence  of  an  express  stat- 
utory requirement  that  the  witnesses  attach  their  signatures  at  the 
foot  or  end  of  the  will,  it  is  immaterial  upon  what  part  of  a  will 
the    attesting    witnesses    sign    their    names;    all    that    is    necessary    is 


38  Coffey's  Probate  Decisions,  Vol.  1. 

that  the  witnesses  sign  their  names  upon  the  paper  upon  which  the 
will  is  written.  So  the  fact  that  two  provisions  of  a  will  were  writ- 
ten after  the  attestation  clause  and  signatures  of  the  witnesses  does 
not  impair  its  validity:  Kolowski  v.  Fausz,  103  111.  App.  528;  Fowler 
V.  Stagner,  55  Tex.  393,  where  the  clause  appointing  executors  was 
appended  after  the  place  left  for  the  signatures  of  the  subscribing 
witnesses,  and  they  signed  after  the  writing  of  the  whole  and  with 
the  intention  of  attesting  the  whole  will,  the  part  after  their  signa- 
tures as  well  as  that  before.  Likewise  it  is  of  no  importance  that 
the  witnesses  sign  their  names  in  the  attestation  clause  of  the  will, 
and  not  after:  Franks  v.  Chapman,  64  Tex.  159.  And  where,  at 
the  conclusion  of  a  will,  after  the  testator's  signature,  was  written 
a  statement  by  the  testator's  wife,  in  substance  that  she  was  satis- 
fied with  it,  and  agreed  to  its  provisions,  and  a  subscribing  witness 
to  the  will  signed  his  name  after  the  above  addendum,  instead  of 
after  the  will  itself,  that  fact  does  not  invalidate  the  will:  Potts  v. 
Felton,  70  Ind.  166.  Also  where  one  of  the  witnesses  to  a  will  signed 
a  sworn  certificate  on  the  back  thereof,  stating  in  substance  that  on 
the  date  of  the  will  the  testator  signed,  sealed  and  delivered  it  for 
the  consideration  and  purposes  stated  therein,  as  his  own  proper  act 
and  deed,  the  attestation  of  such  witness  is  sufficient:  Murray  v. 
Murphy,  39  Miss.  214. 

In  states,  however,  where  it  is  requisite  that  the  witnesses  sign  the 
will  at  the  foot  or  end  thereof,  or  that  they  "subscribe"  it,  a  more 
rigid  rule  is  applicable.  Where  a  will  occupied  the  first  and  part  of 
the  second  page  of  a  four-page  sheet  of  paper,  and,  after  being  signed, 
was  folded  with  the  fourth  page  outside  and  sealed,  and  was  later 
presented  by  the  testator  to  three  persons  to  be  by  them  witnessed  as 
his  will,  there  is  no  sufiieient  subscribing  of  the  will  by  the  witnesses: 
Soward  v.  Soward,  1  Duvall,  126.  For  ''between  the  paper  as  sub- 
scribed by  Soward  [the  testator],  and  the  names  of  the  witnesses, 
there  is  an  intervening  space  of  nearly  two  blank  pages.  So  far  from 
subscribing  their  names  to  the  will,  it  may  be  said,  with  much  more 
propriety  and  accuracy  of  speech,  that  they  merely  indorsed  the  paper 
enclosing  and  enveloping  the  will,  without  any  accompanying  writ- 
ing or  memorandum  to  indicate  the  purpose  of  the  indorsement  or 
showing  any  connection  whatever  between  the  indorsement  and  the 
will.  If  the  paper  had  been  inclosed  in  a  sealed  envelope,  and  the 
witnesses  had  written  their  names  on  the  envelope,  it  would  have 
been  quite  as  near  an  approximation  to  the  requirements  of  the  stat- 
ute. There  would  also  have  been  just  as  little  room  to  doubt  the 
identity  of  the  paper  in  the  one  case  as  in  the  other.  And  whilst  it 
is  true  that  one  of  the  chief  objects  of  requiring  the  subscription  of 
the  names  of  the  witnesses  is  to  insure  identity,  it  is  equally  true  that 
another  object  is  to  prevent  fraudulent  additions  to  or  alterations  of 
the  instrument  to  be  subscribed.  But  the  mode  in  which  these  objects 
are  to  be  attained  is  definitely  and  certainly  prescribed  by  the  law, 
and  it  admits  the  substitution  of  no  other  mode." 


Estate  of  Fleishman.  39 

Moreover,  where,  after  a  testator's  will  was  written,  he  caused 
another  paragraph  to  be  written  at  the  end,  which  clause  was  of  a 
testamentary  character;  and  he  signed  both  at  the  end  of  the  orig- 
inal will,  and  after  the  new  paragraph,  but  the  witnesses  signed  only 
at, the  end  of  the  original  will,  they  failed,  to  subscribe  the  will,  and 
the  will  is  invalid:  In  re  Blair's  Will,  84  Hun,  581,  32  N.  Y.  Supp. 
845.  And  where  a  will  was  written  on  the  first  and  third  pages  of  a 
double  sheet  of  paper,  and  at  the  foot  of  the  first  page  were  the  words 
' '  continued  on  the  next  page, ' '  followed  by  an  attestation  clause  and 
the  signatures  of  the  testator  and  three  subscribing  witnesses,  and  it 
further  appeared  from  the  terms  of  the  will  that  the  matter  on  the 
third  page  was  surplusage,  yet  the  will,  not  being  signed  by  the 
witnesses  at  the  end  of  the  whole  writing,  is  invalid.  The  testator 
intended  the  clauses  on  the  third  page  to  be  part  of  his  will,  and  it 
was  not  completed  to  his  satisfaction  until  they  were  added.  What 
shall  form  part  of  the  instrument  which  the  testator  intends  as  his 
will  must  be  determined  by  him:  In  re  Albert's  Will,  38  Misc.  Kep. 
61,  76  N.  Y.  Supp.  965. 

Time  of  Subscription  and  Attestation. — It  is  not  necessary,  in  most 
states,  that  both  or  all  the  witnesses  to  a  will  should  subscribe  it  at 
the  same  time,  but  a  will  attested  by  a  sufficient  number  of  witnesses, 
who  at  different  times  subscribe  their  names  as  witnesses,  is  well 
executed:  Johnson  v.  Johnson,  106  Ind.  475,  55  Am.  Eep.  762,  7  N.  E. 
201;  Grubbs  v.  Marshall  (Ky.),  13  S.  W.  447;  Dewey  v.  Dewey,  1  Met. 
349,  35  Am.  Dee.  367;  Cravens  v.  Faulconer,  28  Mo.  19;  Eelbeck's 
Devisees  v.  Granberry,  3  N.  C.  232.  In  Virginia,  however,  the  wit- 
nesses to  a  will  must  attest  at  the  same  time,  for  otherwise  ' '  the 
testator  might  be  capable  of  making  a  will  at  the  time  of  one  of  the 
attestations,  and  incapable  at  the  time  of  the  other,  and  only  one 
attesting  witness  could  prove  the  important  fact  of  mental  capacity 
at  either  time":  Parramore  v.  Taylor,  11  Gratt.  220. 

Presence  of  Testator — Necessity  and  Purpose. — It  is  prerequisite 
to  the  validity  of  a  will  that  both  or  all  the  witnesses  thereto  sub- 
scribe and  attest  the  same  in  the  presence  of  the  testator:  Standley 
V.  Moss,  114  HI.  App.  612;  Calkins  v.  Calkins,  216  111.  458,  108  Am. 
St.  Eep.  233,  75  N.  E.  182,  1  L.  E.  A.,  N.  S.,  293;  Cravens  v.  Faul- 
coner, 28  Mo.  19;  In  re  Beggans'  Will,  68  N.  J.  Eq.  572,  59  Atl.  874; 
Eelbeck's  Devisees  v.  Granberry,  3  N.  C.  232;  In  re  Pope's  Will, 
139  N.  C.  484,  111  Am.  St.  Eep.  813,  52  S.  E.  235;  Town  of  Pawtucket 
v.  Ballon.  15  E.  I.  58,  2  Am.  St.  Eep.  868,  23  Atl.  43.  An  instruction 
that  a  will  to  be  valid  must  be  attested  in  the  ' '  personal  and  actual ' ' 
presence  of  the  testator,  is  not  objectionable,  although  the  adjectives 
are  unnecessary,  as,  if  attested  in  his  presence,  it  cannot  otherwise 
than  in  his  "personal  and  actual"  presence:  Greene  v.  Greene,  145 
111.  264,  33  N.  E.  941. 

"The  object  of  the  statute  in  requiring  that  a  will  should  be  'at- 
tested by  the  witnesses  in  the  presence  of  the  testator,'  so  far  as  the 


40  Coffey's  Probate  Decisions,  Vol.  1. 

form  of  the  attestation  is  concerned,  was  to  identify  the  instrument 
as  that  signed  and  published  by  the  testator,  and  to  prevent  fraud 
and  imposition  in  establishing  spurious  wills,  and,  at  the  same  time, 
to  show  the  person  by  whom  the  facts  necessary  to  establish  the  will 
could  be  proved,  when  it  should  be  produced  for  probate":  Fatheree 
V.  Lawrence,  33  Misc.  Kep.  585.  To  the  same  effect,  see  Eobinson 
V.  King,  6  Ga.  639;  Calkins  v.  Calkins,  216  111.  458,  108  Am.  St.  Eep. 
233,  75  N.  E.  182,  1  L.  E.  A.,  N.  S.,  393;  Arndorff  v.  Hummer,  12 
B.  Mon.  619;  Watson  v.  Pipes,  32  Miss.  451;  Crovens  v.  Faulconer, 
28  Mo.  19;  Mandeville  v.  Parker,  31  N.  J.  Eq.  242.  A  further  object 
it  said  to  be  that  the  testator  may  know  that  the  instrument  has  been 
witnessed  by  the  persons  whom  he  has  chosen  for  that  purpose: 
Orndorff  v.  Hummer,  12  B.  Mon.  619. 

Presence  Mentally. — From  the  standpoint  of  a  testator  as  a 
rational  being,  the  performance  of  the  act  of  subscription  and  attesta- 
tion in  his  presence  necessarily  involves  his  full  consciousness  at  the 
time  of  such  performance  of  the  nature  and  quality  of  the  act:  Watson 
V.  Pipes,  32  Miss.  451;  Nock  v.  Nock's  Exrs.,  10  Gratt.  106.  For 
"when  the  condition  of  the  testator  is  such  that  immediately  after 
the  acknowledgment  and  before  the  subscription  of  the  will,  from  sleep 
or  other  cause,  he  becomes  insensible  to  what  is  passing  around  him, 
and  unconscious  of  the  act  of  subscribing,  which  he  has  a  right  to 
supervise,  and  thus  in  fact  is  unable  to  determine  whether  he  will  or 
will  not  supervise  it,  the  subscription  thus  made  is  not  in  the  sense 

or   within    the    objects    of   the    statute    made    in    his    presence 

Although,  as  far  as  mere  space  were  concerned,  the  subscription  was 
in  his  presence,  we  are  satisfied  that  the  same  reasons  which  require 
that  he  should  have  been  physically  capable  by  his  own  exertion  or 
by  the  aid  of  others  to  see  what  was  going  on  if  he  chose  to  do  su, 
operate  even  more  powerfully  to  require  that  he  should  have  been 
conscious  of  it,  and  that  he  should  have  had  the  will  or  mental  power 
to  determine  whether  he  would  or  would  not  see  it.  If  this  be  not 
requisite,  the  subscription  by  the  witnesses  would  be  sufficient,  though 
made  after  the  death  of  the  testator,  or  after  he  had  relapsed  into 
perfect  delirium,  or  had  become  wholly  insensible  to  external  objects 
from  the  near  approach  of  death.  And  if  this  were  sufficient,  the 
objects  of  the  statute  would  be  as  fully  accomplished  if  the  will 
were  subscribed  a  year  from  the  testator's  death,  or  at  any  distance 
from  his  presence  during  his  life":  Orndorff  v.  Hummer,  12  B.  Mon. 
619.  So  where  at  the  time  of  subscription  the  testator  was  in  bed 
and  did  not  speak  to  the  witness  while  he  was  in  the  room,  nor  did 
the  witness  see  him,  and  while  both  before  and  after  the  subscription 
the  testator  was  able  to  converse  and  walk  about,  but  it  did  not 
appear  that  he  was  sensible  or  awake  at  the  time  thereof,  the  sub- 
scription is  insufficient:  Griffith's  Exr.  v.  Griffith,  5  B.  Mon.  511. 
Where  the  feebleness  of  mind  and  body  of  a  testator  at  the  time  of 
attestation  of  his  will  was  so  great  that  there  was  a  total   prostra- 


Estate  of  Fleishman.  41 

tion  of  bodily  and  mental  powers,  the  will  is  void:  Spoonemore  v. 
Cables,  66  Mo.  579.  And  where  a  testator  declared  an  instrument 
to  be  his  will  and  requested  the  witnesses  to  sign,  but  before  the 
second  witness  had  signed  died,  and  he  afterward  subscribed,  the  will 
is  invalid:  In  re  Fish's  Will,  88  Hun,  56,  34  N.  Y.  Supp.  536.  In  Mc- 
Mechen  v.  McMechen,  17  W.  Va.  683,  41  Am.  Eep.  682,  the  court  in 
substance  says:  If  before  the  attestation  of  a  will,  and  while  it  is 
being  done,  the  testator,  by  reason  either  of  unconsciousness  or  phys- 
ical inability,  was  unable  to  dissent  from  the  attestation  and  to  arrest- 
or  prevent  the  same  by  indicating  his  dissent  or  disapproval,  if  he 
had  desired  to  do  so,  the  will  is  not  valid.  It  is  not  necessary  that 
the  testator  shall  actually  assent  to  the  attestation,  but  when  the 
attestation  is  made  he  must  be  in  a  mental  and  physicial  condition 
which  will  enable  him  to  dissent  from  the  attestation  if  he  desires; 
and  if  his  condition  is  such  that  he  could  give  such  dissent  or  dis- 
approval, if  he  chose  to  do  so,  but  does  not,  his  assent  will  be  implied. 

In  Ambre  v.  Weishaar,  74  111.  109,  it  has  further  been  held  that  an 
attestation,  even  in  the  same  room  with  the  testator,  if  done  in  a 
clandestine  and  fraudulent  manner,  will  not  be  regarded  as  done  in. 
his  presence. 

Presence  Physically. — From  the  standpoint  of  the  testator  as  a 
sentient  creature,  there  must  be  such  contiguity  between  the  tes- 
tator and  the  witnesses  at  the  time  of  their  attestation  as  in  fact  or 
in  the  common  experience  of  men  will  bring  the  act  of  the  witnesses 
in  subscribing  and  attesting  to  the  perception  of  the  testator's 
senses.  In  Healey  v.  Bartlett,  73  N.  H.  110,  59  Atl.  617,  the  court 
says:  "When  a  testator  is  not  prevented  by  physical  infirmities 
from  seeing  and  hearing  what  goes  on  around  him,  it  is  the  general, 
if  not  the  universal,  rule,  that  his  will  is  attested  in  his  presence 
if  he  understands  and  is  conscious  of  what  the  witnesses  are  doing 
when  they  write  their  names,  and  can,  if  he  is  so  disposed,  readily 
change  his  position  so  that  he  can  see  and  hear  what  they  do  and  say. 
....  In  other  words,  if  he  had  knowledge  of  their  presence,  and  can, 
if  he  is  so  disposed,  readily  see  them  write  their  names,  the  will  is 
attested  in  his  presence,  even  if  he  does  not  see  them  do  it,  and  could 
not  without  some  slight  physical  exertion.  It  is  not  necessary  that 
he  should  actually  see  the  witnesses  for  them  to  be  in  his  presence. 
They  are  in  his  presence  whenever  they  are  so  near  him  that  he  is 
conscious  of  where  they  are,  and  of  what  they  are  doing,  through  any 
of  his  senses,  and  are  where  he  can  readily  see  them  if  he  is  so  dis- 
posed. The  test,  therefore,  to  determine  whether  the  will  of  a  person 
who  has  the  use  of  all  his  faculties  is  attested  in  his  presence,  is  to 
inquire  whether  he  understood  what  the  witnesses  were  doing  when 
thoy  affixed  their  names  to  his  will,  and  could,  if  he  had  been  so 
disposed,  readily  have  seen  them  do  it." 

In  view  of  the  tendency,  observable  in  the  foregoing  and  many 
other  decisions,  to  confuse  presence  with  eyesight,  the  court,  in  May- 


42  Coffey  ^s  Probate  Decisions,  Vol.  1. 

nard  v.  Vinton,  59  Mich.  139,  60  Am.  Eep.  276,  26  N.  W.  401,  says: 
' '  Courts  have  held  that  where  the  testator  is  a  blind  person,  still  the 
witnesses  must  subscribe  in  such  position  and  proximity  that,  had 
the  testator  been  possessed  of  eyesight,  he  would  have  seen  them; 
thus  making  the  test  of  sight  the  limit  of  personal  presence.  If  this 
is  the  correct  criterion,  then  the  rule,  instead  of  being  uniform,  would 
be  subject  to  great  fluctuations,  according  to  the  degree  of  eyesight 
a  person  has.  What  would  be  in  the  presence  of  a  far-sighted  per- 
son would  be  in  the  absence  of  a  near-sighted  one;  and  what  would 
be  a  valid  execution  of  a  will  for  one  would  be  wholly  worthless  for 
another  with  equal  mental  capacity;  and  a  person  wearing  his  eye- 
glasses or  spectacles  would  have  a  larger  presence  than  when  he  laid 
them  aside.  Under  such  a  rule,  the  oculist  would  appear  to  be  the 
most  important  witness   to   establish  or  destroy  the  legal  attestation 

and  execution  of  a  will I  confess  I  do  not  see  why  the  word 

'presence'  should  not  be  held  to  convey  the  idea  attached  to  its  or- 
dinary signification  in  the  ordinary  use  of  language.  It  is  not  a 
technical  term  or  scientific  word.  Why  should  such  a  meaning  be  put 
upon  this  word  'presence'  that  implies  that  every  person  who  is  called 
upon  to  witness  the  execution  of  a  will  is  presumed  to  be  willing 
and  anxious  to  foist  upon  the  testator  a  spurious  document,  and  hence 
required  to  write  his  name  under  the  eye  (if  he  has  one)  of  the 
testator. ' ' 

Other  decisions,  while  recognizing  that  an  attestation  may  be  good 
although  the  testator  is  blind  or  does  not  choose  to  look  at  the  act  of 
attesting,  yet  hold  that  to  be  in  the  testator's  presence  the  act  of 
attesting  must  be  in  the  line  of  the  testator's  vision  if  he  could  or 
cared  to  look.  In  Calkins  v.  Calkins,  216  111.  458,  108  Am.  St.  Eep. 
233,  75  N.  E.  182,  1  L.  E.  A.,  N.  S.,  393,  the  court  says:  "In  the  case 
of  a  blind  person,  his  will  would  be  attested  in  his  presence  if  the 
act  was  brought  within  his  personal  knowledge  through  the  medium 

of  other  senses On  the  other  hand,  no  mere  contiguity  of  the 

witnesses  will  constitute  presence  if  the  position  of  the  testator  is 
such  that  he  cannot  possibly  see  them.  An  attestation  is  not  in  the 
presence  of  the  testator,  although  the  witnesses  are  in  the  same 
room  and  close  to  him,  if  some  material  obstacle  prevents  him  from 
knowing  of  his  own  knowledge  or  perceiving  by  his  senses  the  act  of 
attestation.  To  the  same  effect,  In  re  Tobin,  196  HI.  484,  63  N.  E. 
1021;  Eiggs  V.  Eiggs,  135  Mass.  238,  46  Am.  Eep.  464;  Eeynolds  v. 
Eeynolds,  1  Spear,  253,  40  Am.  Dec.  599.  The  necessity,  in  case  of  a 
blind  testator,  that  the  act  of  attesting  should  be  within  the  percep- 
tion of  his  remaining  senses  does  not  appear  to  be  appreciated  in  the 
remarks  in  Healey  v.  Bartlett,  73  N.  H.  110,  59  Atl.  617,  in  respect 
to  the  wills  of  blind  testators.  In  Eay  v.  Hill,  3  Strob.  297,  49  Am. 
Dec.  647,  the  will  of  a  blind  man  was  sustained,  the  will  having  -been 
within  two  feet  of  the  testator  at  the  time  the  witnesses  subscribed 
their  names,  and  the  court  said:   "In  the   ease   of  a  blind  man,  the 


Estate  of  Fleishman.  43 

superintending  control  which  in  other  cases  is  exercised  by  sight 
must  be  transferred  to  the  other  senses;  and  if  they  are,  or  may, 
at  his  discretion,  be  made  sensible  that  the  witnesses  are  subscribing 
the  same  will  that  he  had  signed,  I  should  think  it  ought  to  suflEice. " 
Presence  in  Case  of  Clear  Vision. — Where  a  testator  is  so  situated 
with  respect  to  the  witnesses  to  his  will  that  by  a  mere  movement  of 
Ms  head,  which  he  had  the  physical  ability  to  make  if  he  chose,  they 
would  be  in  his  unobstructed  sight  during  the  act  of  attestation,  they 
are  sufficiently  in  his  presence,  though  he  fails  to  overlook  their  act  of 
attestation:  Eobinson  v.  King,  6  Ga.  539;  Ambre  v.  Weishaar,  74  111. 
109;  In  re  Storey's  Will,  20  111.  App.  183,  200;  McElfresh  v.  Guard, 

32  Ind.  408;  Turner  v.  Cook,  36  Ind.  129;  OrndorfP  v.  Hummer,  12  B. 
Mon.  619;  Edelen  v.  Hardley's  Lessee,  7  Har.  &  J.  61,  16  Am.  Dec. 
292;  Dewey  v.  Dewey,  1  Met.  (Mass.)  349,  35  Am.  Dec.  367;  Hogan 
v.  Grosvenor,  10  Met.  (Mass.)  54,  43  Am.  Dec.  414;  In  re  Allen,  25 
Minn.  39;  Watson  v.  Pipes,  32  Miss.  451;  Walker  v.  Walker,  67  Miss. 
529,  7  South.  491;  Spoonemore  v.  Cables,  66  Mo.  579;  Cornelius  v. 
Cornelius,  52  N.  C.  593;  Blanchard's  Heirs  v.  Blanchard 's  Heirs,  32 
Vt.  62;  Eay  v.  Hill,  3  Strob.  297,  49  Am.  Dee.  647.  This  rule  ap- 
plies equally  where  the  witnesses  were  not  in  the  same  room  with 
the  testator:  Orndorff  v.  Hummer,  12  B.  Mon.  619;  Bynum  v.  Bynum, 

33  N.  C.  632;  In  re  Meurer's  Will,  44  Wis.  392,  28  Am.  Rep.  591.  If 
actual  sight  were  necessary,  it  would  vitiate  a  will  if  the  testator  did 
but  turn  his  back  or  look  off,  though  literally  present  by  being  at  the 
spot  where  the  thing  was  done:  Bynum  v.  Bynum,  33  N.  C.  632. 

Presence  in  Case  of  Obstructed.  Vision. — Where,  however,  the  tes- 
tator and  witnesses  are  in  the  same  apartment  and  fairly  contiguous, 
but  some  physical  object  obstructing  the  sight  lies  between  them  dur- 
ing the  act  of  subscribing,  the  witnesses  are  not  in  the  testator's 
presence,  and  the  attestation  is  insufficient,  although  the  testator  was 
physically  capable  of  changing  his  position  or  removing  the  obstruc- 
tion had  he  chose  to  do  so:  Robinson  v.  King,  6  Ga.  539;  Brooks  v. 
Duflfell,  23  Ga.  441;  Reed  v.  Roberts,  26  Ga.  294,  71  Am.  Dec.  210; 
Calkins  v.  Calkins,  216  111.  458,  108  Am.  St.  Rep.  233,  75  N.  E.  182, 
1  L.  R.  A.,  N.  S.,  293;  Ray  v.  Hill,  3  Strob.  297,  49  Am.  Dec.  647. 
Yet  in  Michigan,  where  the  sight  was  interrupted  by  the  fact  that 
the  first  witness  stood  between  the  testator  and  the  second  witness 
while  the  second  was  subscribing,  the  attestation  was  not  thereby 
invalidated:  Maynard  v.  Vinton,  59  Mich.  139,  60  Am.  Rep.  276,  26 
N.  W.  401.  And  the  fact  that,  while  subscribing,  a  witness  is  so 
placed  with  respect  to  the  testator  that  the  witness'  body  cuts  off 
the  testator's  view  of  the  will,  the  hand  of  the  witness  with  which 
he  was  subscribing,  and  the  act  of  subscription,  does  not  render  the 
attestation  any  the  less  in  the  presence  of  the  testator:  In  re  Tobin, 
196  111.  484,  63  N.  E.  1021;  Nock  v.  Nock's  Exrs.,  10  Gratt.  106; 
Baldwin  v.  Baldwin  's  Exr.,  81  Va.  405,  59  Am.  Rep.  669. 


44  Coffey's  Probate  Decisions,  Vol.  1. 

Presence  in  Case  of  Inability  to  Look  in  Direction. — In  some  de- 
cisions it  is  held  that  where  the  testator's  ability  actually  to  see  the 
witnesses  to  his  will  subscribe  the  same  is  dependent  upon  his  ability 
to  turn  himself,  and  his  ailment  so  operates  as  to  prevent  him  from 
making  this  movement,  the  will  is  not  witnessed  in  his  presence: 
Aikin  v.  Weckerly,  19  Mich.  482;  Watson  v.  Pipes,  32  Miss.  451; 
Walker  v.  Walker,  67  Miss.  529,  7  South.  491;  Neil  v.  Neil,  1  Leigh, 
6,  the  court  being  equally  divided.  But  in  Riggs  v.  Riggs,  135  Mass. 
238,  46  Am.  Eep.  464,  the  court  held  that  where  a  will  was  attested 
nine  feet  from  a  testator's  bed  ia  an  adjoining  room,  and  in  the 
unobstructed  line  of  vision  from  his  bed,  but  because  of  injuries 
he  was  unable  to  turn  his  head  or  to  look  in  any  direction  except  up- 
ward, it  is  attested  in  his  presence,  for  sight  is  not  the  only  test 
of  presence.  "A  man  may  take  note  of  the  presence  of  another 
by  the  other  senses,  as  hearing  or  touch.  Certainly,  if  two  blind 
men  are  in  the  same  room,  talking  together,  they  are  in  each  other 's 
presence.  If  two  men  are  in  the  same  room,  conversing  together,  and 
either  or  both  bandage  or  close  their  eyes,  they  do  not  cease  to  be  in 
each  other's  presence." 

Position  in  Same  or  Another  Room — Presumption  Therefrom. — In 
order  that  the  attestation  may  be  in  the  presence  of  the  witnesses,  it 
is  not  indispensable  that  the  witnesses  should,  at  the  time  of  their 
subscription,  be  in  the  same  room  or  even  in  the  same  house  as  the 
testator:  Robinson  v.  King,  6  Ga.  539;  Ambre  v.  Weishaar,  74  111. 
109;  McElfresh  v.  Guard,  32  Ind.  408;  Watson  v.  Pipes,  32  Miss.  451. 
Yet  where  the  witnesses  subscribe  in  a  different  room  from  that  in 
which  the  testator  is  and  out  of  the  line  of  his  vision,  they  are  not 
in  his  presence:  Robinson  v.  King,  6  Ga.  539,  where  the  witnesses 
went  onto  the  piazza  to  subscribe;  Edelen  v.  Hardley's  Lessee,  7 
Har.  &  J.  61,  16  Am.  Dec.  292;  Boldry  v.  Parris,  2  Gush.  433;  Mande- 
ville  V.  Parker,  31  N.  J.  Eq.  242,  where  the  will  was  on  a  table,  behind 
the  partition  of  the  adjoining  room,  although  the  backs  of  the  wit- 
nesses sitting  at  the  table  and  subscribing  their  names  might  have 
been  visible  from  the  position  of  the  testator;  Graham  v.  Graham,. 
32  N.  C.  219,  under  same  circumstances;  Jones  v.  Tuck,  48  N.  C.  202; 
Reynolds  v.  Reynolds,  1  Spear,  253,  40  Am.  Dec.  599,  where  a  testator 
in  bed  could  have  seen,  by  raising  himself  on  his  elbow,  which  he 
had  the  strength  to  do,  but  did  not.  In  Wright  v.  Lewis,  5  Rich.  1, 
212,  55  Am.  Dec.  714,  where  a  testator,  being  in  ordinary  health, 
walked  on  to  a  piazza  to  subscribe  his  will  and  sat  down  at  a  table 
and  did  it,  and  then  rose  and  let  the  witnesses  sit  there  to  sign, 
meanwhile  walking  into  the  room  off  the  piazza  from  parts  of  which 
he  could  see  the  witnesses  sign,  and  after  the  attestation  was  done 
was  found  by  the  witnesses  sitting  in  a  place  in  the  room  from  which 
he  could  not  have  seen  the  witnesses  when  subscribing,  the  court  held 
the  attestation  sufficiently  in  the  testator's  presence,  and  distin- 
guished the  case  from  the  others  on  the  ground  that  in  them  the  will 


Estate  of  Fleishman.  45 

was  taken  from  the  actual  presence  of  the  testator  to  be  attested, 
while  here  the  will  remained  exactly  where  the  testator  signed  it,  and 
he  left  the  witnesses  when  he  knew  they  were  attesting  it. 

Moreover,  in  a  number  of  decisions  it  is  held  that  where  the  wit- 
nesses are  in  the  same  room  with  the  testator  at  the  time  of  the  act 
of  subscribing,  they  are  prima  facie  in  his  presence,  and  the  burden 
if  on  a  contestant  of  the  will  to  rebut  that  presumption,  while  if 
they  are  not  all  in  the  same  room  at  that  time,  they  are  prima  facie 
out  of  the  presence  of  the  testator,  and  the  burden  is  on  the  propo- 
nent of  the  will  to  establish  their  mutual  presence:  Orndorff  v.  Hum- 
mer, 12  B.  Mon.  619;  Watson  v.  Pipes,  32  Miss.  451;  Mandeville  v. 
Parker,  31  N.  J.  Eq.  242;  In  re  Beggan's  Will,  68  N.  J.  Eq.  572,  59 
Atl.  874;  Bynum  v.  Bynum,  33  N.  C.  632;  Jones  v.  Turk,  48  N.  C. 
202. 

Acknowledgment  of  Signature  as  Equivalent  to  Presence. — In  some 
states,  where  the  witnesses  to  a  will  subscribed  the  same  out  of 
the  presence  of  the  testator,  their  subsequent  acknowledgment  of 
the  signatures  to  the  testator,  although  done  as  part  of  the  same 
transaction,  the  signatures  being  exhibited  to  the  testator,  does  not 
amount  to  subscription  in  the  testator's  presence  and  is  insufficient 
to  validate  the  will:  Calkins  v.  Calkins,  216  111.  458,  108  Am.  St. 
Kep.  223,  75  N.  E.  182,  1  L.  E.  A..  N.  S.,  393;  Chase  v.  Kittredge,  11 
Allen,  49,  87  Am.  Dec.  687;  Town  of  Pawtucket  v.  Ballon,  15  E.  I. 
58,  2  Am.  St.  Eep.  868,  23  Atl.  43;  In  re  Downie's  Will,  42  Wis.  66. 
In  other  states,  however,  the  subscription  and  attestation  is  in  such 
case,  under  the  circumstances  mentioned,  sufficiently  done  in  the 
testator's  presence:  Cook  v.  Winchester,  81  Mich.  581^  46  N.  W.  106, 
8  L.  E.  A.  822;  Moore  v.  Moore's  Exr.,  8  Graft.  307,  the  court  being 
equally  divided;  Sturdivant  v.  Birchett,  10  Gratt.  67  (Daniel  and 
Allen,  JJ.,  dissenting). 

Mutual  Presence  of  Witnesses. — In  most  states,  it  is  not  requisite 
that  the  witnesses  to  a  will  sign  or  attest  the  same  in  the  pres- 
ence of  each  other  or  of  one  another,  but  it  is  sufficient  that  they 
do  so  separately:  Moore  v.  Spier,  80  Ala.  129;  Appeal  of  Gaylord, 
43  Conn.  82;  Flinn  v.  Owen,  58  111.  Ill;  In  re  Hull's  Will,  177  Iowa, 
738,  89  N.  W.  979;  Hogan  v.  Grosvcnor,  10  Met.  (Mass.)  54,  43  Am. 
Dec.  414;  Ela  v.  Edwards,  16  Gray,  91;  Cravens  v.  Faulconer,  28  Mo. 
19;  Hoysradt  v.  Kingman,  22  N.  Y.  372;  In  re  Potter's  Will,  12  N. 
y.  Supp.  105;  In  re  Diefenthaler 's  Will,  39  Misc.  Eep.  765,  80  N. 
Y.  Supp.  1121;  Eaudebaugh  v.  Shelley,  6  Ohio  St.  307;  Logue  v. 
Stanton,  5  Sneed,  97;  Simmons  v.  Leonard,  91  Tenn.  183,  30  Am.  St. 
Eep.  875,  18  S.  W.  280;  Parramore  v.  Taylor,  11  Gratt.  220;  Beane 
V.  Yerby,  12  Gratt.  239;  Green  v.  Crain,  12  Gratt.  252  (Allen,  P.,  and 
Daniel,  J.,  dissenting,  by  reason  of  peculiar  statutory  language) ; 
In  re  Smith's  Will,  52  Wis.  543,  38  Am.  Eep.  756,  8  N.  W.  616,  9 
N.  W.  665.  "A  requisition  that  the  witnesses  shall  subscribe  in  the 
presence  of  each  other  would  be  a  fruitful  source  of  litigation,  would 


46  Coffey's  Probate  Decisions,  Vol.  1. 

dfcfeat  many  fair  wills,  and  would,  I  think,  be  productive  of  no 
corresponding  good.  It  would  very  much  clog  the  exercise  of  the 
testamentary  power,  without  throwing  around  it,  so  far  as  I  can 
perceive,  a  single  additional  safeguard.  It  would  render  it  necessary 
to  inquire  in  every  case  whether  the  witnesses,  when  they  sub- 
scribed the  will,  were  not  only  in  the  presence  of  the  testator  or  in 
the  range  of  his  vision,  but  also  in  the  presence  of  each  other  or  in 
the  range  of  each  other's  vision.  It  would  be  questionable  whether 
range  of  the  vision  would  be  sufficient  in  regard  to  the  witnesses 
inter  se,  and  whether  actual  sight  would  not  be  necessary":  Para- 
more  V.  Taylor,  11  Gratt.  220. 

In  a  few  states,  however,  the  witnesses  must  be  together  in  each 
other's  or  one  another's  presence  at  the  time  of  their  subscription 
and  attestation  of  the  will,  to  validate  the  same:  Ludlow  v.  Ludlow, 
36  N.  J.  Eq.  597;  Eoberts  v.  Welch,  46  Vt.  164.  In  these  latter  states, 
where  all  the  witnesses  to  a  will  were  so  situated  that  they  might 
have  seen  one  another  sign,  it  is  not  material  whether  they  did  in 
fact  or  not:  Blanchard's  Heirs  v.  Blanchard's  Heirs,  32  Vt.  62;  In"  re 
Claflin's  Will,  73  Vt.  129,  87  Am.  St.  Eep.  693,  50  Atl.  815.  But  to 
constitute  presence,  it  is  not  sufficient  that  the  witnesses  merely  were 
in  the  same  room  with  the  testator.  The  room  might  have  been  so 
large;  but  the  witnesses  must  have  been  together  in  the  presence  of 
one  another  in  such  a  way  and  in  such  a  sense  that  they  could  see 
one  another  sign;  whether  they  actually  looked  and  saw  or  not,  they 
must  have  been  right  where  they  could  have  seen  one  another  sign: 
In  re  Claflin's  Will,  75  Vt.  19,  52  Atl.  1053,  58  L.  E.  A.  261. 

Knowledge  of  Contents  by  Witnesses. — It  is  not  essential  to  the 
validity  of  a  will  that  it  should  be  read  over  to  the  witnesses  thereto, 
nor  that  they  should  know  its  contents:  Dickie  v.  Carter,  42  111.  376; 
Brown  v.  McAlister,  34  Ind.  375;  In  re  Higdon's  Will,  6  J.  J.  Marsh, 
444,  22  Am.  Dee.  84;  Flood  v.  Pragofif,  79  Ky.  607;  Hogan  v.  Gros- 
venor,  10  Met.  (Mass.)  64,  43  Am.  Dec.  414;  Osborn  v.  Cook,  11  Cush. 
532,  59  Am.  Dec.  155;  Eaudebaugh  v.  Shelley,  6  Ohio  St.  307;  Luper 
V.  Werts,  19  Or.  122,  23  Pac.  850;  Skinner  v.  Lewis,  40  Or.  571,  62 
Pac.  523,  67  Pac.  951;  Appeal  of  Linton,  104  Pa.  228,  relating  to  a 
will  of  a  married  woman;  Simmons  v.  Leonard,  91  Tenn.  183,  30  Am. 
St.  Eep.  875,  18  S.  W.  280. 

In  order  to  validate  his  attestation  to  a  will,  a  witness  thereto 
need  not  know  the  testamentary  capacity  af  the  testator:  Huff  v. 
Huff,  41  Ga.  696.  It  is  error  to  instruct  the  jury  that  prior  to  the 
signing  of  a  will  by  the  witnesses  thereto,  each  of  the  witnesses  must 
know  that  the  other  was  to  be  an  attesting  witness,  and  each  must 
know  that  the  other  had  been  requested  to  act  in  that  capacity:  Savage 
V.  Bowen,  103  Va.  540,  49  S.  E.  668. 

It  is  not  requisite  to  the  validity  of  a  will  that  the  witnesses 
thereto  attest  to  exactly  the  same  act  or  declaration  on  the  part  of 


Estate  op  Fleishman.  47 

the  testator,  indicating  his  acknowledgment  of  the  instrument:   In  re 
Hull's  Will,  117  Iowa,  738,  89  N.  W.  979. 

Attestation  Clause. — "Where  it  is  customary  to  place  at  the  end  of 
a  will,  before  the  signatures  of  the  witnesses  thereto,  an  attestation 
clause  setting  forth  with  more  or  less  completeness  the  performance 
of  the  statutory  requisites  to  its  due  execution  and  witnessing,  yet 
the  total  absence  of  such  clause,  or  of  any  word  of  attestation,  does 
not  invalidate  the  will:  Calkins  v.  Calkins,  216  111.  458,  108  Am.  St. 
Rep.  233,  75  N.  E.  182,  1  L.  R.  A.,  N.  S.,  393;  In  re  Barry's  Will,  219 
III.  391,  76  N.  E.  577;  Barricklow  v.  Stewart,  163  Ind.  438,  72  N.  E. 
128;  In  re  Hull's  Will,  117  Iowa,  738,  89  N.  W.  979;  Ela  v.  Edwards, 
16  Gray,  91;  Berberet  v.  Berberet,  131  Mo.  399,  52  Am.  St.  Rep.  634, 
33  S.  W.  61;  Williams  v.  Miles,  68  Neb.  463,  110  Am.  St.  Rep.  431,  94 
N.  W.  705,  96  N.  W.  151;  In  re  Look,  54  Hun,  635,  7  N.  W.  Supp.  298; 
affirmed  without  opinion,  125  N.  Y.  762,  27  N.  E.  408;  In  re  Aker's 
Will,  74  App.  Div.  461,  77  N.  Y.  Supp.  643;  In  re  Cornell's  Will,  89 
App.  Div.  412,  85  N.  Y.  Supp.  920;  Webb  v.  Dye,  18  W.  Va.  376. 
Where  such  a  clause  is  used,  the  particular  form  of  completeness  there- 
of is  immaterial  to  the  validity  of  the  will:  Keely  v.  Moore,  196  U. 
S.  38,  25  Sup.  Ct.  169,  49  L.  Ed.  376,  affirming  22  App.  Dist.  Col. 
9;  Robinson  v.  Brewster,  140  111.  649,  33  Am.  St.  Rep.  265,  30  N.  E. 
638;  Barricklow  v.  Stewart,  163  Ind.  438,  72  N.  E.  128;  In  re  Hull's 
Will,  117  Iowa,  738,  89  N.  W.  979;  Osborn  v.  Cook,  11  Cush.  532,  59 
Am.  Dec.  155;  Chase  v.  Kittredge,  11  Allen,  49,  89  Am.  Dec.  687; 
Fatheree  v.  Lawrence,  33  Miss.  585,  Chaffee  v.  Baptist  Missionary 
Convention,  10  Paige,  85,  40  Am.  Dec.  225;  Jackson  v.  Jackson,  39 
N.  Y.  163;  Franks  v.  Chapman,  64  Tex.  159.  The  same  rules  hold 
true  with  respect  to  an  attestation  clause  to  a  codicil:  In  re  Crane, 
68  App.  Div.  355,  74  N.  Y.  Supp.  88. 

So  where  the  attestation  clause  of  a  will  consisted  merely  of  the 
word  "witness"  (Osborn  v.  Cook,  11  Cush.  532,  59  Am.  Dec.  155; 
Chase  v.  Kittredge,  11  Allen,  49,  87  App.  Div.  687;  In  re  Aker's  Will, 
74  App.  Div.  461,  77  N.  Y.  Supp.  643),  or  "attest"  (Robinson  v. 
Brewster,  140  111.  649,  33  Am.  St.  Rep.  265,  30  N.  E.  683),  or  "test" 
(Fatheree  v.  Lawrence,  33  Miss.  585),  written  before  the  names  of 
the  witnesses,  it  is  sufficient.  Where  at  the  end  of  a  will,  below 
the  testator's  subscription  were  subscribed  the  phrases  "Written  by 
S.  S.  Ashton,"  and  "Witness  Anna  R.  Ashton,"  and  it  appeared 
that  the  first  witness  was  the  draftsman  of  the  will  and  w-rote  the 
words  "Written  by  S.  S.  Ashton  for"  on  the  will,  intending  to  add 
the  testatrix's  name  in  case  she  was  unable  to  write  her:  own,  but 
the  testatrix,  being  able  to  write  it,  scratched  out  the  word  "for" 
and  left  the  remainder  as  a  subscription  and  attestation  of  the 
will,  it  is  sufficient:  P()lh)ck  v.  Glassel,  2  Gratt.  439.  An  attestation 
clause  in  the  form  of  a  formal  certificate  of  acknowledgment  of  the 
testator's  signature,  the  witness  being  one  authorized  to  take  acknowl- 
edgments, has  also  been  sustained:  In  re  Hull's  Will,  117  Iowa,  738, 


48  Coffey's  Probate  Decisions,  Vol.  1. 

89  N.  W.  979;  Franks  v.  Chapman,  64  Tex.  159.  Likewise  an  at- 
testation clause  stating  in  substance  that  on  the  date  of  the  will  the 
testator  signed,  sealed  and  delivered  it  for  the  consideration  and 
purposes  stated  therein  as  his  own  proper  act  and  deed  does  not  in- 
validate the  attestation,  as  such  superfluous  language  cannot  invali- 
date the  witness'  signature  thereto:  Murray  v.  Murphy,  39  Miss.  214. 
Furthermore,  the  use  of  one  clause  in  one  form  signed  by  two  wit- 
nesses, and  of  another  clause  in  another  form  signed  by  the  third,  does 
not  (three  witnesses  being  necessary)  render  the  attestation  of  the 
will  insufficient:  Keeley  v.  Moore,  196  U.  S.  38,  25  Sup.  Ct.  169,  49 
L.  Ed.  376,  affirming  22  App.  Dist.  Col.  9. 

But  in  the  early  case  of  Withinton  v.  Withinton,  7  Mo.  589,  where 
a  paper  offered  as  a  will  was  in  form  a  deed  to  take  effect  at  the 
grantor's  death,  and  had  attached  to  it  a  certificate  of  a  notary, 
wherein  the  notary  acknowledged  his  signature  and  his  act,  and  that 
he  did  it  for  the  purposes  in  the  writing  set  forth,  which  certificate 
was  signed  by  the  notary,  the  court  held  that  the  notary 's  signature 
cannot,  for  the  purpose  of  sustaining  the  writing  as  a  will,  be  con- 
:  sidered  the  signature  of  an  attesting  witness,  since  the  function  of  a 
witness  to  a  will  is  not  only  to  prove  that  the  instrument  was  ex- 
ecuted, but  that  the  testator  was  of  sound  and  disposing  mind,  while 
here  the  notary  certified  merely  to  the  due  execution  and  not  to  the 
mental  capacity  of  the  grantor. 

Order  of  Execution  by  Testator  and  by  Witness. — While  the  gen- 
eral and  regular  course  in  the  attestation  of  a  will  is  for  the  testa- 
tor first  to  execute  the  will  on  his  part  and  then  call  on  the  wit- 
nesses to  attest  the  execution  by  subscribing  their  names  (O'Brien  v. 
Gallagher,  25  Conn.  229),  yet  in  some  states  the  fact  that  one  or  more 
of  the  witnesses  subscribe  their  names  before  the  testator  signs  or 
acknowledges  the  will  does  not,  where  the  testator  afterward,  as  part 
of  the  same  transaction  and  in  the  continued  presence  of  the  wit- 
nesses, himself  signs  or  acknowledges  it,  invalidate  the  will:  O'Brien 
v  Gallagher,  25  Conn.  229;  Swift  v.  Wiley,  1  B.  Mon.  114;  Sechrest 
V.  Edwards,  4  Met.  (Ky.)  163;  Cutler  v.  Cutler,  130  N.  C.  1,  89  Am. 
St.  Rep.  854,  40  S.  E.  689,  57  L.  R.  A.  209;  Rosser  v.  Franklin,  6 
Gratt.  1,  52  Am.  Dec.  97;  Parramore  v.  Taylor,  11  Gratt.  220;  Beane 
V  Yerby,  12  Gratt.  239.  Compare,  however,  Chisholm's  Heirs  v.  Ben, 
7  B.  Mon.  408.  In  Swift  v.  Wiley,  1  B.  Mon.  114,  the  court  said: 
' '  As  all  three  of  the  subscribing  witnesses  were  present  at  the  final 
publication  of  the  will,  attested  the  fact  of  signing  and  publishing 
by  the  testator,  and  either  then  subscribed  or  acknowledged  the  sub- 
scription of  their  respective  names,  on  the  same  paper,  so  as  to  in- 
sure the  identification  of  the  will  as  then  published  and  attested, 
every  purpose  of  the  statute  has  been  fulfilled,  and  not  even  a  let- 
ter of  it  violated  or  disregarded.  To  resubscribe  the  names  .... 
would  have  been  a  superfluous  and  puerile  act  of  mechanical  repeti- 
tion,   not    necessary    for   identification;    because    they    had    once    sub- 


Estate  op  Fleishman.  49 

scribed  the  same  paper  in  the  presence  and  at  the  request  of  the 
testator,  and  which  fact  was  recognized  by  him,  as  well  as  by  tliem- 
sflves,  after  his  own  name  had  been  subscribed,  and  when  the  docu- 
ment, thus  recognized  and  identified,  was  finally  and  conclusively 
published  as  his  will;  nor  can  we  perceive  any  other  end  of  either 
utility  or  security  that  could  have  been  promoted  by  again  subscrib- 
ing names  already  sutficientlj^  subscribed." 

Moreover,  in  Grigg  v.  Williams,  51  jST.  C.  518,  the  court  held  that 
where  after  one  of  the  witnesses  to  a  will  had  subscribed  his  name 
the  testator  inserted  the  name  of  an  additional  executor  as  part  of 
the  same  transaction,  the  attestation  by  such  witness  was  good. 

In  other  states,  however,  where  one  or  more  of  the  necessary  wit- 
nesses to  a  will  subscribes  it  before  the  testator  subscribes  or  ac- 
knowledges the  same  to  the  witnesses,  the  attestation  of  the  will  is 
iusuflficient,  although  the  testator  afterward,  as  part  of  the  same 
transaction,  signs  or  acknowledges  the  will:  Duffie  v.  Corridon,  40  Ga. 
122,  where  the  testator  signed  the  next  day  in  the  presence  of  the 
witness  who  had  signed  the  previous  day;  Brooks  v.  Woodson,  87 
Ga.  379,  13  S.  E.  712,  14  L.  E.  A.  160;  Chase  v.  Kittredge,  11  Allen, 
49,  87  Am.  Dec.  687,  where  one  of  the  witness  signed  in  the  absence 
of  and  before  the  testator,  and  the  witness  afterward  acknowledged 
his  signature  to  the  testator  after  the  testator  had  signed  in  his 
presence;  Lacey  v.  Dobbs,  63  N.  J.  Eq.  325,  92  Am.  St.  Eep.  667, 
50  Atl.  497,  55  L.  E.  A.  580,  overruling  Mundy  v.  Mundy,  15  N.  J. 
Eq.  290,  to  the  contrary;  Baskin  v.  Baskin,  36  N.  Y.  416;  Jackson 
V.  Jackson,  39  N.  Y.  153;  Sisters  of  Charity  v.  Kelly,  67  N.  Y.  409; 
In  re  Williams'  Will,  2  Conn.  Sur.  579,  15  N.  Y.  Supp.  828,  judg- 
ment affirmed,  64  Hun,  636,  19  N.  Y.  Supp.  613;  Simmons  v.  Leon- 
ard, 91  Tenn.  183,  30  Am.  St.  Eep.  875,  18  S.  W.  280.  See,  also, 
In  re  Irvine's  Estate,  206  Pa.  1,  55  Atl.  795,  holding  that  the  Pennsyl- 
vania statute  of  1855  governing  the  execution  of  a  will  disposing  of 
property  to  charitable  or  religious  uses,  presupposes  the  existence 
of  a  writing  signed  by  the  testator  at  the  time  of  attestation.  In 
support  of  this  doctrine,  the  court  in  Brooks  v.  Woodson,  87  Ga.  379, 
13  S.  E.  712,  14  L.  E.  A.  160,  declared  that  the  signature  of  the 
testator  is  the  principal,  if  not  the  only,  matter  to  which  the  at- 
testation applies,  and  such  being  the  case,  the  attestation  is  insuf- 
ficient if  made  a  moment  before  the  signing  by  the  testator,  as  well 
as  though  made  a  day  before.  "To  witness  a  future  event  is  equally 
impossible,  whether  it  occur  the  next  moment  or  the  next  week." 
And  in  Jackson  v.  Jackson,  39  N.  Y.  153,  the  courts  says:  "Their 
signatures  do  not  attest  the  signing  by  the  testator,  if  they  are 
placed  there  before  the  will  is  signed  by  him.  For  some  period,  longer 
or  shorter,  as  the  case  may  be,  those  signatures  attest  no  execution — 

they   certify  what    is   not   true Execution   and    the   attestation 

thereof  bear  a  plain  relation  to   each  other  in  point  of  time,   in  the 
good   sense   and   common   apprehension   of   everyone,   and    the   statute 
prescribing  the  requisite  formalities  to  a  valid  execution  and  authen- 
Prob.  Dec,  Vol.  I —  4 


50  Coffey's  Probate  Decisions,  Vol.  1. 

tication  plainly  contemplates  that  the  acts  of  the  witnesses  shall  at- 
test the  signing  and  declaration  of  the  testator  as  a  fact  accom- 
plished. ' ' 

Similarly  in  Reed  v.  Watson,  27  Ind.  443,  where  a  testator  pro- 
cured the  signature  of  a  witness  to  his  will  before  he  signed  it,  and 
then  took  the  will  away  with  him  and  afterward  attached  his  own 
signature  without  the  knowledge  of  such  witness,  the  court  held  the 
attestation  insufficient. 

In  Re  Phillips,  98  N.  Y.  267,  the  court,  however,  held  that  the 
statute  of  wills  is  complied  with,  if  the  declaration  that  the  instru- 
ment is  a  will  and  the  acknowledgment  of  the  testator 's  signature 
are  simultaneous  with  the  signature  of  the  subscribing  witness,  espe- 
cially if  these  acts  are  done  before  the  witness  has  completed  his 
signature  and  all  on  the  same  occasion. 

Order  of  Publication  and  Other  Requisites. — It  is  sufficient  in  those 
states  where  publication  is  essential  to  the  validity  of  a  will  that 
it  be  done  as  part  of  the  transaction  of  witnessing  the  will,  whether 
before  or  after  the  signing  or  acknowledgment  of  the  will  by  the 
testator  to  the  witnesses:  In  re  Johnson's  Estate,  57  Cal.  529,  where 
the  publication  was  made  immediately  after  a  witness  finished  sub- 
scribing; Jackson  v.  Jackson,  39  N.  Y.  153,  where  publication  was 
made  immediately  before  the  subscription  of  the  will  by  the  testator; 
In  re  Look's  Will,  5  N.  Y.  Supp.  50;  In  re  Look,  54  Hun,  635,  7  N. 
Y.  Supp.  298,  judgment  affirmed,  125  N.  Y.  762,  27  N.  E.  408,  holding 
that  publication  must  be  made  at  the  time  of  subscription  or  ac- 
knowledgment by  the  testator;  In  re  Dale's  Will,  56  Hun,  169,  9 
N.  Y.  Supp.  396,  affirmed  without  opinion,  134  N.  Y.  614,  32  N.  E. 
649;  In  re  Williams'  Will,  2  Conn.  Sur.  579,  15  N,  Y.  Supp.  828, 
judgment  affirmed,  64  Hun,  636,  19  N.  Y.  Supp.  613,  where  publica- 
tion was  made  immediately  before  subscription  by  the  testator;  In 
re  Carll's  Will,  38  Misc.  Rep.  471,  77  N.  Y.  Supp.  1036.  It  is,  how- 
ever, insufficient  to  publish  the  will  to  one  of  the  witnesses  thereto 
several  weeks  after  the  attestation  by  the  witness:  In  re  Dale's  Will, 
56  Hun,  169,  9  N.  Y.  Supp.  396,  affirmed  without  opinion,  134  N.  Y. 
614,  32  N.  E.  649. 

Order  of  Request  to  Witnesses  and  Other  Requisites. — The  fact  that 
a  testatrix  requested  the  witnesses  to  her  will  to  subscribe  as  such 
before  she  subscribed  it  does  not  impair  its  validity,  where  they 
did  not  actually  subscribe  until  after  the  testatrix:  In  re  Williams' 
Will,  2  Conn.  Sur.  579,  15  N.  Y.  Supp.  828,  64  Hun,  636,  19  N.  Y. 
Supp.  613. 

Mode  of  Attestation. — ' '  The  code  provides  no  special  formalities 
about  the  witnesses  to  a  will.  It  is  sufficient  if  they  attest  and 
subscribe  the  will  in  the  presence  of  the  testator":  Huff  v.  Huff, 
41  Ga.  696.  The  law  looks  to  the  substance  of  the  transaction,  and 
requires  only  evidence   that  all   the  safeguards   against  improvidence 


Estate  of  Fleishman.  51 

and  fraud,  prescribed  by  statute,  have  been  substantially  observed: 
Lewis  V.  Lewis,  UN.  Y.  220,  13  Barb.  17. 

Mode  of  Request  to  Witnesses  and  Publication. — It  is  proper  and 
sufficient  for  a  testator  to  publish  his  will  and  to  request  the  witnesses 
thereto  to  attest,  in  tne  same  sentence,  or  by  the  same  acts,  or  in 
response  to  one  question  by  one  of  the  witnesses.  "These  acts  are 
distinct  in  their  nature  or  quality,  but  the  performance  may  be  joint 
or  connected":  Coffin  v.  Coffin,  23  N.  Y.  9,  80  Am.  Dec.  235;  In  re 
Kane's  Will,  20  N.  Y.  Supp.  123;  In  re  Menge's  Will,  13  Misc.  Eep. 
553,  35  N.  Y.  Supp.  493;  In  re  Murphy's  Will,  15  Misc.  Eep.  208,  37 
N.  Y.  Supp.  223. 

The  Testimony  of  the  Attesting  Witnesses, — Where  a  will  is  regu- 
lar on  its  face,  its  due  execution  may  ordinarily  be  proved  by  the 
uncontroverted  testimony  of  one  of  the  witnesses  thereto:  Griffith's 
Exr.  v.  Griffith,  5  B.  Mon.  511;  Hight  v.  Wilson,  1  Call.  94,  ]  L.  Ed. 
51;  Dean  v.  Heirs  of  Dean,  27  Vt.  746.  In  Illinois,  however,  it  is 
requisite  that  the  testimony  of  all  the  witnesses  shall  be  taken  to 
the  point  that  the  testator  was  of  sound  mind  and  memory  at  the 
time  of  the  execution  of  the  will:  Allison  v.  Allison,  46  111.  61,  92 
Am.  Dec.  237. 

Right  to  Put  in  Evidence  Outside  Testimony  of  Witnesses. — Before 
any  evidence  other  than  the  testimony  of  the  witnesses  to  a  will 
may  be  produced  to  prove  its  due  execution,  all  the  witnesses  must 
first  be  examined,  or  else  their  absence  accounted  for  and  their  sig- 
natures proved:  Tudor  v.  Tudor,  17  B.  Mon.  383,  relating  to  a  codicil; 
In  re  Moore's  Will,  109  App.  Div.  762,  N.  Y.  Supp.  729;  Alexander 
V.  Beadle,  7  Colo.  126.  No  controlling  force,  however,  is  to  be  given 
to  the  testimony  of  the  witnesses,  and  it  is  liable  to  be  rebutted  by 
other  evidence,  either  direct  or  circumstantial;  yet  their  direct  par- 
ticipation in  the  transaction  gives  great  weight  to  their  testimony: 
Orser  v.  Orser,  24  N.  Y.  51;  Webb  v.  Dye,  18  W.  Va.  376.  Thus 
where  the  testimony  of  one  or  even  all  of  the  witnesses  to  a  will 
is  adverse  to  its  valid  execution,  it  may  be  sustained  by  other  evi- 
dence adequate  to  show  its  due  execution:  Griffith's  Exr.  v.  Griffith, 
5  B.  Mon.  511;  Jauncey  v.  Thorne,  2  Barb.  Ch.  40;  In  re  Carll's  Will, 
38  Misc.  Eep.  471,  77  N.  Y.  Supp.  1036;  In  re  Moore's  Will,  109 
App.  Div.  762,  96  N.  Y.  Supp.  729;  Skinner  v.  Lewis,  40  Or.  571, 
62  Pac.  523,  67  Pac.  951;  Hight  v.  Wilson,  1  Dall.  94,  1  L.  Ed.  51; 
Rose  V.  Allen,  1  Colo.  23;  Alexander  v.  Beadle,  7  Colo.  126;  Simmons 
V,  Leonard,  91  Tenn.  183,  30  Am.  St.  Eep.  875,  18  S.  W.  280;  Dean 
v.  Heirs  of  Dean,  27  Vt.  746;  In  re  Claflin 's  Will,  73  Vt.  129,  87 
Am.  St.  Eep.  693,  50  Atl.  815;  Webb  v.  Dye,  18  W.  Va.  376;  In  re 
Meurer's  Will,  44  Wis.  392,  28  Am.  Eep.  591.  So  where  a  witness 
to  a  will  testifies  that  his  signature  thereto  is  not  genuine,  and  that 
he  knew  nothing  of  its  execution,  proof  of  his  handwriting  is  ad- 
missible to  controvert  his  testimony:  Jones  v.  Arterburn,  11  Humph, 
97.     Thus   a    will   may   be   proved   by   other   witnesses   than   the    sub- 


52  Coffey's  Probate  Decisions,  Vol.  1. 

scribing  witnesses,  notwithstanding  one  of  them  gives  testimony  that 
the  testator  was  unconscious  at  the  time  of  attestation:  Cheatham 
V.  Hatcher,  30  Gratt.  56,  32  Am.  Eep.  650.  Likewise  where  the  wit- 
nesses to  a  will  disagree  as  to  the  material  facts  in  its  execution, 
that  fact  alone  is  not  enough  to  defeat  the  will:  In  re  Bedell's  Will, 
2  Conn.  Sur.  328,  12  N.  Y.  Supp.  96;  In  re  Meurer's  Will,  44  Wis. 
392,  28  Am.  Eep.  591.  And  where  the  witnesses  to  a  will  were  un- 
able to  write,  and  their  hands  having  been  guided  by  the  draftsman 
of  the  will  while  writing  their  respective  signatures,  were  unable  to 
identify  them,  and  expressed  the  opinion  on  hearing  the  will  read 
that  certain  of  its  provisions  had  been  changed  since  it  was  read  to 
Ihem  at  the  time  of  its  execution,  the  testimony  of  the  draftsman 
i)f  the  will  is  properly  admitted  to  sustain  it:  Montgomery  v.  Perkins, 
2  Met.  (Ky.)  448,  74  Am.  Dec.  419.  Furthermore,  where  the  wit- 
nesses to  a  will  when  called  as  witnesses  cannot  remember  the  facts 
respecting  the  execution  of  the  will,  it  may  nevertheless  be  supported 
by  other  evidence,  including  the  presumptions  of  law  proi^erly  ap- 
plicable: Hobart  v.  Hobart,  154  111.  610,  45  Am.  St.  Eep.  151,  39  N. 
E.  581;  In  re  Hull's  Will,  117  Iowa,  738,  89  N.  W.  979;  Jauncey  v. 
Thorne,  2  Barb.  Ch.  40,  59;  Orser  v.  Orser,  24  N.  Y.  51;  Peck  v. 
Cary,  27  N.  Y.  9,  84  Am.  Dec.  220,  38  Barb.  77;  Eugg  v.  Eugg,  83 
N.  Y.  592;  In  re  Kane's  Will,  20  N.  Y.  Supp.  123;  Skinner  v.  Lewis, 
40  Or.  571,  62  Pac.  523,  67  Pac.   951. 

In  Illinois,  however,  where  a  petition  for  probate  of  a  will  is  first 
heard  in  a  probate  court,  the  evidence  in  that  court  is  properly  con- 
fined to  that  of  the  attesting  witnesses,  but  if  the  probate  is  there 
denied  and  the  matter  goes  to  the  circuit  court,  on  the  hearing  in 
the  circuit  court  the  proponent  of  the  will  is  not  limited  to  nor 
bound  by  the  testimony  of  the  witnesses  to  the  will,  but  may  right- 
fully resort  to  any  relevant  and  competent  evidence  to  sustain  the 
will:  Gould  v.  Chicago  Theological  Seminary,  189  111.  282,  59  N.  E. 
536;  Webster  v.  Yorty,  194  111.  408,  62  N.  E.  907;  In  re  Tobin,  196 
111.  484,  63  N.  E.  1021;  In  re  Barry's  Will,  219  111.  391,  76  N.  E.  577. 

Opinion  of  Witness  as  Evidence. — ' '  The  opinions  of  subscribing  wit- 
nesses as  to  the  condition  of  the  testator's  mind,  at  the  time  of  the 
execution  of  the  will,  may  be  received  in  evidence,  when  the  facts 
are  stated  on  which  such  opinions  are  founded,  though  such  wit- 
nesses do  not  fall  within  the  class  known  to  the  law  as  experts. 
In  such  cases,  however,  the  evidence  on  which  most  reliance  should 
be  placed  are  the  facts  proved,  rather  than  the  opinions  expressed 
by  the  witnesses":  Cilley  v.  Cilley,  34  Me.  162.  Also  Stirling  v. 
Stirling,  64  Md.  138,  21  Atl.  273.  In  Illinois  such  opinion  must, 
however,  be  taken  in  every  case  of  probate:  Allison  v.  Allison,  46 
111.  61,  92  Am.  Dec.  237.  Where  a  witness  to  a  will  expresses  an 
opinion  adverse  to  the  testamentary  capacity  of  the  testator,  that 
fact  is  not  necessarily  fatal  to  the  will,  but  as  the  witness  prima 
facie  attests  the  testamentary  capacity  of  the  testator  by  becoming 
a    witness,    his    adverse   testimony   will    be    received    with    suspicion: 


Estate  of  Fleishman.  53 

Odenwaelder  v.  Schorr,  8  Mo.  App.  458;  Mays  v.  Mays,  114  Mo.  536, 
21  S.  W.  921. 

Declarations  of  Witness  as  Evidence. — Where  the  variant  statements 
of  a  witness  to  a  will  are  put  in  evidence  to  impeach  him,  they  can- 
not, be  used  as  substantive  evidence  of  the  facts  stated:  Stirling  v. 
Stirling,  64  Md.  138,  21  Atl.  273;  In  re  Moore's  Will,  109  App.  Div. 
762,  96  N.  Y.  Supp.  729;  In  re  Claflin 's  Will,  75  Vt.  19,  52  Atl.  1053, 
58  L.  E.  A.  261. 

The  Attestation  Clause  as  Evidence. — Where,  on  a  proceeding  where- 
in the  validity  of  a  will  is  at  issue,  the  witnesses  thereto  are  pro- 
duced, the  attestation  clause  may  be  used  as  a  means  of  refresh- 
ing the  memories  of  the  attesting  witnesses  in  respect  to  the  formali- 
ties actually  observed  in  the  execution  of  the  will  to  which  it  is 
attached:  In  re  Look,  54  Hun,  635,  7  N.  Y.  Supp.  298,  affirmed  with- 
out opinion,  125  N.  Y.  762,  27  N.  E.  408.  Moreover,  where  there  is  a 
dispute  as  to  what  occurred  at  the  time  of  the  execution  of  a  will, 
and  the  will  is  on  its  face  in  due  form,  the  recitals  of  the  attesta- 
tion clause  must  be  given  some  weight  in  determining  the  dispute: 
In  re  Menge  's  Will,  13  Misc.  Kep.  553,  35  N.  Y.  Supp.  493. 

Where,  by  reason  of  the  failure  of  the  memories  of  the  subscribing 
witness  to  a  will,  their  insanity,  death,  or  absence  beyond  the  reach  of 
process,  their  testimony  cannot  be  obtained,  proof  of  their  signatures 
subscribed  to  the  attestation  clause  renders  the  recitals  of  that  clause 
prima  facie  evidence  of  the  observance  in  the  execution  of  such  will 
of  all  the  formalities  set  forth  in  such  clause.  It  is  not,  however, 
conclusive  evidence  of  the  due  execution  of  the  will,  but  is  subject 
t(<  be  rebutted  by  evidence  showing  that  the  actual  execution  was 
insufficient:  In  re  Hull's  Will,  117  Iowa,  738,  89  N.  W.  979;  Mundy 
V.  Mundy,  15  N.  J.  Eq.  290;  Tappen  v.  Davidson,  27  N.  J.  Eq.  459; 
Allaire  v.  Allaire,  37  N.  J.  L.  312,  39  N.  J.  L.  113;  Mandeville  v. 
Parker,  31  N.  J.  Eq.  242;  Chaffee  v.  Baptist  Missionary  Convention, 
10  Paige,  85,  40  Am.  Dec.  225;  In  re  Kane's  Will,  20  N.  Y.  Supp. 
123;  In  re  Jones'  Will,  85  N.  Y.  Supp.  294,  holding  that  this  pre- 
sumption arises  even  though  the  will  was  of  recent  date;  Skinner  v. 
Lewis,  40  Or.  571,  62  Pac.  523,  67  Pac.  951;  Appeal  of  Linton,  104 
Pa.  228;  In  re  Claflin 's  Will,  73  Vt.  129,  87  Am.  St.  Rep.  639,  50 
Atl.  815;  In  re  Meurer's  Will,  44  Wis.  392,  28  Am.  Rep.  591,  holding 
that  want  of  recollection  on  the  part  of  the  witnesses  to  a  will 
would  not  defeat  it,  especially  where  there  was  a  complete  attestation 
clause.  Because  of  its  effect  as  evidence,  an  attestation  clause  to  a 
will,  comprising  a  statement  of  all  that  is  necessary  to  the  execution 
of  the  instrument  as  a  will,  is  therefore  in  the  highest  degree  useful: 
Allaire  v.  Allaire,  37  N.  J.  L.  312,  39  N.  J.  L.  113.  For  the  purpose 
of  rebutting  the  presumption  thus  arising  from  the  attestation  clause, 
oral  evidence  is  admissible:  Fleming  v.  Morrison,  187  Mass.  120,  105 
Am.  St.  Rep.  386,  72  N.  E.  499;  Pollock  v.  Glassel,  2  Gratt.  439. 


54  Coffey's  Probate  Decisions,  Vol.  1. 

In  Pennsylvania  it  has  been  held  that  where  it  is  shown  on  the 
probate  of  a  will  that  one  of  the  witnesses  thereto  is  dead  and  that 
his  signature  to  the  will  is  genuine,  that  proof  is  equivalent  to  posi- 
tive proof  by  one  witness  of  every  fact  stated  in  the  attesting  clause: 
Appeal  of  Linton,  104  Pa.  228.  In  New  York,  however,  it  has  been 
held  that  it  is  clear  that  the  attesting  clause  is  not  equivalent  to 
the  testimony  of  a  living  witness,  and  cannot  stand  as  against  the 
positive  testimony  of  a  witness  to  the  contrary.  "If  equivalent,  it 
should  have  equal  weight  as  against  conflicting  testimony,  a  force 
which  cannot  reasonably  be  attributed  to  it.  The  statute  makes  it 
evidence;  but  it  is  evidence  of  a  secondary  and  inferior  nature,  which 
is  received  from  the  nature  of  the  case":  Orser  v.  Orser,  24  N.  Y. 
51;  Lewis  v.  Lewis,  11  N.  Y.  220,  13  Barb.  17. 

Where  a  will  has  no  attestation  clause,  or  if  the  attestation  clause 
does  not  recite  the  performance  of  all  the  requisites  to  the  making 
of  a  valid  will,  and  the  testimony  of  the  witnesses  to  the  will  can- 
not be  obtained,  in  some  states  the  burden  is  on  the  proponent  of 
the  will  to  show,  by  the  circumstances  of  the  case  or  other  proof  if 
necessary,  the  observance  of  all  the  requisites  to  the  valid  execution 
of  a  will  or  of  those  the  performance  of  which  is  not  recited  in  the 
attestation  clause,  as  the  case  may  be:  Ela  v.  Edwards,  16  Gray,  91; 
Mundy  v.  Mundy,  15  N.  J.  Eq.  290;  Allaire  v.  Allaire,  37  N.  J.  L. 
312,  39  N.  J.  L.  113;  Ludlow  v.  Ludlow,  36  N.  J.  Eq.  597;  In  re 
Breining's  Estate,  68  N.  J.  Eq.  553,  59  Atl.  561;  In  re  Beggans'  Will, 
68  N.  J.  Eq.  572,  59  Atl.  874;  Chaffee  v.  Baptist  Missionary  Conven- 
tion, 10  Paige,  85,  40  Am.  Dec.  225.  In  other  states,  however,  where 
a  will  is  regular  on  its  face,  the  performance  of  the  necessary 
requisites  to  its  due  execution  will,  in  the  absence  of  an  attestation 
clause,  be  implied  from  proof  of  the  signatures  of  the  witnesses 
thereto:  Fatheree  v.  Lawrence,  33  Miss.  585;  Nock  v.  Nock's  Exrs., 
10  Gratt.  106.     See,  also,  Webb  v.  Dye,  18  W.  Va.  376,  388. 


In  the  Matter  of  the  Estate  of  JOHN  S.  DOE. 

[No.  14,365;    decided  November  27,  1905.] 

Wills — Construction  as  to  Intestacy. — Of  the  two  modes  of  inter- 
preting a  will,  that  is  to  be  preferred  which  will  prevent  a  total 
intestacy;  but  if  the  legal  effect  of  the  expressed  intent  of  a  tes- 
tator is  intestacy,  it  will  be  presumed  that  he  designed  that  result. 

Construction  of  Statute  Adopted  from  Another  State. — The  rule 
that  a  statute  adopted  from  another  state  will  be  given  the  con- 
struction placed  upon  it  by  the  courts  of  that  state  prior  to  its 
adoption,   is   not   absolute,   especially  where   there   has   been   a   single 


Estate  of  Doe.  55 

decision   which   has   since   been   questioned   or   repudiated   in   the   for- 
eign state. 

Trusts — Construction  as  to  Duration. — In  determining  the  duration 
of  a  trust  term,  the  inherent  character  of  the  trust  and  its  essential 
limitations  may  form  an  element  in  the  construction  to  be  given  to 
the  language  creating  it. 

Trusts — On  Whose  Lives  Term  may  be  Limited. — A  trust  created 
under  subdivision  3  of  section  857  of  the  Code  of  Civil  Procedure, 
to  receive  the  rents  and  profits  of  real  property,  and  apply  them  to 
the  use  of  designated  beneficiaries,  may  be  limited  on  lives  of  per- 
sons other  than  the  beneficiaries. 

Trusts — Duration  Limited  by  Purposes. — A  trust  in  real  property 
to  pay  the  rents  and  profits  thereof  to  designated  beneficiaries  can- 
not endure  longer  than  the  lives  of  the  beneficiaries,  where,  upon 
the  assumption  that  they  will  outlive  the  trusts,  the  lives  of  the  lat- 
ter are  made  the  measure  of  the  trust. 

Trusts — Whether  Bare  and  Void. — A  devise  "in  trust"  for  others 
is  not  invalid  as  a  bare  trust,  when  it  imposes  on  the  trustee  the 
duty  of  paying  the  rents  and  profits  of  the  property  to  the  benefi- 
ciaries. 

Trusts — Effect  of  Partial  Invalidity, — An  invalid  provision  in  a 
Irust,  which  is  not  an  integral  or  essential  part  of  the  trust  scheme, 
^vill  not   necessarily  vitiate  the  other  provisions. 

Trusts — Unlawful  Accumulations. — A  direction  to  trustees  to  pay 
taxes,  street  assessments,  and  other  charges  and  expenses  incurred 
in  improvements,  out  of  the  income  of  the  trust  estate,  does  not  pro- 
vide for  an  unlawful  accumulation. 

Trusts — Unlawful  Accumulations. — A  provision  in  a  trust  for  re- 
taining the  income  of  the  estate  and  paying  it  over  to  the  benefi- 
ciaries annually  is  not  void. 

Wills — Devise  on  Termination  of  Trust. — A  devise  to  the  widow 
and  daughter  of  the  testator,  one-half  to  the  daughter  absolutely 
and  the  other  half  to  the  widow  for  life  with  remainder  to  the  daugh- 
ter, is  valid,  regardless  of  the  validity  of  a  devise  in  trust  of  an 
intermediate  or  precedent  estate. 

Wills — Creation  of  Vested  Remainder. — The  devise  in  this  case  to 
the  widow  and  daughter  of  the  testator  upon  the  "termination  of 
the  trust"  is  held  to  be  a  devise  of  a  vested  remainder,  postponed 
in  possession  merely. 

Trusts — Purpose  and  Validity. — If  a  testator,  after  making  specific 
gifts,  devises  the  residue  of  his  estate  to  trustees  "for"  certain 
beneficiaries,  and  elsewhere  in  the  will  provides  that  the  executors, 
who  are  also  named  as  trustees  of  the  trust,  shall  pay  to  the  per- 
sons designated  as  those  "for"  whom  the  property  is  held,  a  speci- 
fied sum  per  month,  the  payment  of  that  sum  constitutes  a  trust  pur- 


56  Coffey's  Probate  Decisions,  Vol.  1. 

pose   of  the   trust   of  the  residuum,   and  the   latter  is   not   void   as   a 
naked  trust. 

Wills — Acceleration  of  Devise  When  Trust  Invalid. — If  a  devise 
is  limited  to  take  effect  upon  the  termination  of  a  trust  and  the 
trust  proves  invalid,  the  devisees  come  immediately  into  their  own. 

Trusts — Liberal  Interpretation  of  Statutes. — Provisions  of  the  codes 
in  respect  to  testamentary  trusts  should  be  construed  liberally. 

Application   for  final  distribution. 

Garret  W.  McEnerney  and  Heller  &  Powers,  for  the  sur- 
viving executor  and  trustee,  Bartlett  Doe,  and  for  other  con- 
tingent devisees,  applicants. 

The  trust  of  specific  property  is  not  created  to  endure 
for  an  illegal  period.  If  the  wife  and  daughter  predecease 
the  trustees,  the  trust  terminates  on  the  death  of  the  bene- 
ficiaries :  Civ.  Code,  sees.  871,  2279 ;  Crooke  v.  County  of 
Kings,  97  N.  Y.  421.  Even  if  a  trust  were  dependent  upon 
the  lives  of  the  trustees,  the  trust  would  be  valid :  Bailey  v. 
Bailey,  97  N.  Y.  467 ;  Crooke  v.  County  of  Kings,  97  N.  Y. 
421,  both  cases  overruling  Downing  v.  Marshall,  23  N.  Y. 
366,  377,  80  Am.  Dec.  290.  The  construction  given  a  stat- 
ute at  the  time  of  its  adoption  from  a  foreign  state  will  not 
be  followed  where  that  construction  has  afterward  been  held 
erroneous:  Goble  v.  Simeral,  67  Neb.  276,  93  N.  W.  236; 
Whitney  v.  Fox,  166  U.  S.  637,  17  Sup.  Ct.  713,  41  L.  Ed. 
1145;  Iron  Works  v.  White,  31  Colo.  82,  71  Pac.  384.  The 
case  is  distinguishable  from  that  of  Wittfield  v.  Forster  (124 
Cal.  418,  57  Pac.  219),  since  trust  purposes  are  here  de- 
clared. If  there  be  directions  for  an  unlawful  accumula- 
tion of  income,  this  does  not  invalidate  the  trust  of  specific 
property:  Civ.  Code.  sec.  733.  A  provision  for  the  annual 
payment  of  income  is  not  void  as  an  unlawful  accumula- 
tion :  Estate  of  Steele,  124  Cal.  533,  541,  57  Pac.  564 ;  In  re 
Howell's  Estate,  180  Pa.  515,  520,  37  Atl.  181;  Livingstone 
V.  Tucker,  107  N.  Y.  549,  552,  14  N.  E.  443.  Thus  annuities 
are  valid  under  the  New  York  law  corresponding  to  our  code 
section:  Alvord  v.  Sherwood,  21  i\Iisc.  Rep.  354,  47  N.  Y. 
Supp.  749 ;  Garvey  v.  Trust  Co.,  29  App.  Div.  513,  52  X.  Y. 
Supp.  260;  Nichols  v.  Nichols,  42  Misc.  Rep.  381,  86  N.  Y.. 


Estate  of  Doe.  57 

Supp.  719;  In  re  Tracy,  87  App.  Div.  215,  83  N.  Y.  Supp. 
1049 ;  Provost  v.  Provost,  70  N.  Y.  144 ;  Townshend  v.  From- 
mer,  125  N.  Y.  446,  26  N.  E.  805;  In  re  Foster's  Estate,  37 
Misc.  Rep.  581,  75  N.  Y.  Supp.  1067;  Stewart  v.  Phelps,  71 
App.  Div.  91,  75  N.  Y.  Supp.  526;  Salisbury  v.  Slack,  160 
N.  Y.  278,  54  N.  E.  741;  Cochrane  v.  Schell,  140  N.  Y.  516,. 
35  N.  E.  971 ;  Hooker  v.  Hooker,  41  App.  235,  58  N.  Y.  Supp. 
536;  Horsfield  v.  Black,  40  App.  Div.  264,  57  N.  Y.  Supp. 
1006 ;  Vernon  v.  Vernon,  53  N.  Y.  351.  The  trust  of  specifie. 
property  is  not  invalid  under  the  doctrine  of  Carpenter  v. 
Cook  (132  Cal.  621,  84  Am.  St.  Rep.  118,  64  Pac.  997),  as, 
unlike  that  case,  the  trust  here  does  not  make  the  payment 
of  the  expenses  which  are  claimed  to  be  accumulations  a  trust 
purpose.  Even  if  the  trust  of  specific  property  were  invalid, 
the  devise  in  remainder  would  be  unaffected:  Civ.  Code,  sees. 
741,  742,  767.  The  estate  of  the  mother  and  daughter  in  the 
property  covered  by  the  specific  trust  is  a  vested  and  not 
a  contingent  remainder:  Civ.  Code,  sees.  689,  690,  693-695. 
Even  if  the  trust  of  the  specific  property  Avere  void,  the 
remainder  of  mother  and  daughter  would  be  accelerated 
merely  and  not  defeated:  Underbill  on  Wills,  sec.  878;  24 
Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  418 ;  Hamlin  v.  Mans- 
field, 88  Me.  131,  137,  138,  33  Atl.  788;  Marvin  v.  Ledwith, 
111  111.  151;  Fox  V.  Rumery,  68  Me.  121;  Jull  v.  Jacobs, 
L.  R.  3  Ch.  D.  703,  710;  Everett  v.  Croskey,  92  Iowa,  333, 
335,  336,  60  N.  W.  732;  Key  v.  Weathersbee,  43  S.  C.  414, 
49  Am.  St.  Rep.  846,  21  S.  E.  324;  Norris  v.  Beyea.  13  N. 
Y.  273.  Even  if  the  doctrine  of  acceleration  were  not  ap- 
plicable, and  if  the  trust  of  specific  property  were  void,  the 
estate  devised  would  fall  into  the  trust  of  the  residuum : 
Civ.  Code,  sec.  1332;  Estate  of  Upham,  127  Cal.  90,  92.  59 
Pac.  315;  Matter  of  Benson,  96  N.  Y.  499,  509,  48  Am.  Rep. 
646.  If  the  doctrine  of  acceleration  were  not  applicable,  and 
the  trusts,  both  of  the  specific  property  and  of  the  residuum, 
were  invalid,  the  testator  would  be  held  merely  to  have  died 
intestate  as  to  the  intermediate  estate,  but  not  as  to  the  es- 
tate in  remainder  to  the  mother  and  daughter. 

The  trust  of  the  residuum  is  valid.     The  payment  of  one 
thousand  dollars  per  month  provided  for  in  the  eiglith  para- 


58  Coffey's  Probate  Decisions,  Vol.  1. 

graph  of  the  codicil  gives  the  trust  an  active  purpose:  Teel 
V.  Hilton,  21  R.  I.  227,  42  Atl.  1111;  Matter  of  Dewey,  153 
N.  Y.  63,  46  N.  E.  1039;  In  re  Schneider,  71  Hun,  62,  24 
N.  y.  Supp.  540 ;  United  States  Trust  Co.  v.  Maresi,  33  Misc. 
Rep.  539,  68  N.  Y.  Supp.  918.  The  trust  is  valid  and  covers 
all  of  the  property,  even  though  the  estate  covered  by  it 
be  more  than  sufficient  to  pay  the  thousand  dollars  per 
month:  Estate  of  Pichoir,  139  Cal.  682,  688,  73  Pac.  606; 
Cochrane  v.  Schell,  140  N.  Y.  516,  35  N.  E.  971.  Even  if 
the  trust  of  the  residuum  were  invalid,  the  testator  did  not 
die  intestate  as  to  the  property  embraced  within  it.  Either 
the  remainders  to  mother  and  daughter  would  be  acceler- 
ated, or  the  testator  would  die  intestate  as  to  the  interme- 
diate estate  only,  which  intermediate  estate  terminates  upon 
the  arrival  of  the  daughter  at  the  age  of  eighteen  years. 

Charles  S.  Wheeler  and  J.  F.  Bowie,  for  Eleanor  H.  Stet- 
son, respondent  and  counter-applicant. 

In  construing  the  will  the  court  must  arrive  at  the  inten- 
tion of  the  testator  without  reference  to  the  validity  of  such 
intention.  The  rule  that  testacy  is  preferred  to  intestacy 
has  reference  only  to  cases  of  ambiguity:  Civ.  Code,  sees. 
1317,  1318,  1326;  Estate  of  Young,  123  Cal.  343,  55  Pac. 
1011;  Cunliffe  v.  Brancker,  L.  R.  3  Ch.  D.  399;  Speakman 
V.  Speakman,  8  Hare,  185;  Schouler,  on  Wills,  sec.  470;  3 
Jarman  on  Wills,  5th  Am.  ed.,  706;  Gray's  Rule  Against 
Perpetuities,  sec.  629.  The  direction  for  payment  of  the 
income  annually  by  the  trustees  to  the  executors  is  not  a 
trust  purpose,  but  a  mere  power:  Estate  of  Sanford,  136 
Cal.  97,  68  Pac.  494.  That  the  testator  misapprehended  the 
legal  effect  of  his  language  is  immaterial:  Estate  of  Young, 
123  Cal.  343,  55  Pac.  1011 ;  Estate  of  Walkerly,  108  Cal.  627, 
49  Am.  St.  Rep.  97,  41  Pac.  772 ;  Estate  of  Fair,  132  Cal. 
546.  84  Am.  St.  Rep.  70.  60  Pac.  442,  64  Pac.  1000;  Hunter 
V.  Attorney  General,  [1899]  App.  Cas.  The  direction  for 
the  payment  of  one  thousand  dollars  does  not  furnish  a 
trust  purpose  for  the  attempted  trust  of  the  residuum:  Civ. 
Code,  sec.  1322.  One  of  the  purposes  of  the  trust  of  the 
specifically   devised  property  being   void,   as   providing  for 


Estate  of  Doe.  59 

an  unlawful  accumulation,  the  entire  trust  is  void:  Estate 
of  Fair,  132  Cal.  523,  540,  541,  84  Am.  St.  Rep.  70,  60  Pac. 
442,  64  Pac.  1000;  Estate  of  Dixon,  143  Cal.  511,  77  Pac. 
412;  Estate  of  Sanford,  136  Cal.  97,  68  Pac.  494.  The  trust 
to' pay  rents  and  profits  to  the  executors,  to  be  paid  to  the 
beneficiaries,  is  not  valid  under  subdivision  3  of  section  857 
of  the  Civil  Code:  "Field  Code"  of  New  York,  sec.  285,  subd. 
3,  and  annotations.  A  trust  under  this  section  and  subdi- 
vision must  be  made  dependent  on  the  lives  of  the  benefi- 
ciaries :  Downing  v.  Marshall,  23  N.  Y.  366,  80  Am.  Dec.  290. 
In  adopting  the  statute  from  New  York,  we  adopted  the  con- 
struction which  Downing  v.  Marshall,  supra,  placed  upon 
it:  Henrietta  Min.  Co.  v.  Gardner,  173  U.  S.  123,  19  Sup. 
Ct.  327,  43  L.  Ed.  637 ;  Sanger  v.  Flow,  48  Fed.  152 ;  Coul- 
ter V.  Stafford,  48  Fed.  266,  270 ;  Tucker  v.  Oxley,  5  Cranch, 
34,  42,  3  L.  Ed.  1018;  Culam  v.  Doull,  133  U.  S.  216,  10 
Sup.  Ct.  253,  33  L.  Ed.  596;  Kennedy's  Heirs  v.  Kennedy's 
Heirs,  2  Ala.  571;  Armstrong's  Ex.  v.  Armstrong's  Heirs, 

29  Ala.  538;  Bailey's  Heirs  v.  Bailey's  Ex.,  35  Ala.  687; 
Tyler  v.  Tyler,  19  111.  151;  Duval  v.  Hunt,  34  Fla.  85,  15 
South.  876;  Freese  v.  Trip,  70  111.  496;  Bemis  v.  Becker,  1 
Kan.  86 ;  Commonwealth  v.  Hartnett,  69  Mass.  450 :  State  v. 
Macon  Co.,  41  IMo.  453;  Coffield  v.  State,  44  Neb.  417,  62 
N.  W.  875;  Everding  v.  McGinn,'  23  Or.  15,  35  Pac.  178; 
Pomeroy  v.  Pomeroy,  93  Wis.  262,  67  N.  W.  430.  The  cases 
of  Crooke  v.  County  of  Kings,  97  N.  Y.  421,  and  Bailey  v. 
Bailey  97  N.  Y.  460,  are  not  here  applicable  or  competent 
to  change  the  construction  placed  upon  the  statute  in  Down- 
ing V.  Marshall:  Stutsman  Co.  v.  Wallace,  142  U.  S.  293, 
12^Sup.  Ct.  227,  35  L.  Ed.  1018 ;  Myers  v.  McGavock,  39  Neb. 
843,  42  Am.  St.  Rep.  627,  58  N.  W.  522.  The  trust  created 
by  the  second  paragraph  of  the  codicil  provides  for  unlaw- 
ful accumulations  in  directing  payment  of  (1)  mortgages 
(Hascall  v.  King,  162  N.  Y.  134,  143,  76  Am.  St.  Rep.  302, 
56  N.  E.  515)  ;  (2)  charges  on  the  property  (Hascall  v.  King, 
162  N.  Y.  134,  76  Am.  St.  Rep.  302,  56  N.  E.  515;  Matter 
of  Hoyt,  71  Hun,  13,  24  N.  Y.  Supp.  577;  Wells  v.  Wells, 

30  Abb.  N.  C.  225,  24  N.  Y.  Supp.  874 ;  In  re  Fishor,  4  :\Iise. 
Rep.  46,  25  N.  Y.  Supp.  79)  ;  (3)  street  assessments  (Mat- 


60  Coffey's  Probate  Decisions,  Vol.  1. 

ter  of  Rogers,  supra ;  Hascall  v.  King-,  supra ;  Norwood  v. 
Baker,  172  U.  S.  269,  19  Sup.  Ct.  187,  43  L.  Ed.  443 ;  Peck 
V.  Sherwood,  56  N.  Y.  615 ;  Thomas  v.  Evans,  105  N.  Y.  601, 
612,  59  Am.  Rep.  519,  12  N.  E.  571;  Cromwell  v.  Kirk,  1 
Dem.  599,  603;  Stilwell  v.  Doughty,  2  Bradf.  311,  317)  ;  (4) 
expenses  incurred  in  making  improvements  on  the  property 
(Drake  v.  Trafusio,  L.  R.  10  Ch.  App.  364,  366;  Stevens  v. 
Melcher,  80  Hun,  514,  525,  30  N.  Y.  Supp.  625).  The  trust 
being  created  to  pay  over  only  such  rents  and  profits  as  may 
remain  after  the  paymeiit  of  these  items  which  amount  to 
accumulations,  the  trust  is  void :  Carpenter  v.  Cook,  132  Cal. 
625,  81  Am.  St.  Rep.  118,  64  Pac.  997;  Limbrey  v.  Gurr,  6 
Madd.  151.  Section  733  of  the  Civil  Code  does  not  save  the 
trust. 

The  trust  of  the  residuum  is  a  trust  to  distribute,  and 
therefore  void :  Estate  of  Fair,  132  Cal.  523,  84  Am.  St.  Rep. 
70,  60  Pac.  442,  64  Pac.  1000 ;  Hofsas  v.  Cummings,  141  Cal. 
25,  75  Pac.  110.  A  trust  cannot  be  created  to  hold  property, 
receive  the  rents  and  profits,  and  pay  them  over  as  annuities. 
The  only  trust  in  real  property  for  the  payment  of  annuities 
permissible  in  this  state  is  that  provided  by  subdivision  2  of 
section  857  of  the  Civil  Code,  which  is  not  a  trust  to  "hold," 
but  a  trust  to  lease,  which  involves  an  alienation  and  not  a 
holding:  Hascall  v.  King,  162  N.  Y.  149,  76  Am.  St.  Rep. 
302,  56  N.  E.  515;  Hawley  v.  James,  16  Wend.  62.  The  de- 
vise in  remainder  after  the  expiration  of  the  trust  of  the 
specific  property  falls  with  the  invalidity  of  the  trust :  ]\Ioney- 
penny  v.  Dering,  2  De  Gex,  M.  &  G.  180;  Cowen  v.  Rinaldo, 
82  Hun,  479,  31  N.  Y.  Supp.  554;  Carpenter  v.  Cook,  132 
Cal.  621,  84  Am.  St.  Rep.  118,  64  Pac.  997. 

COFFEY,  J.  John  S.  Doe  died  January  21,  1894,  leav- 
ing a  widow  and  child,  two  brothers,  two  sisters,  several 
nephews  and  nieces,  and  other  collateral  kindred.  He  had 
made  a  will,  dated  January  26,  1892,  and  a  codicil  dated  No- 
vember 21,  1893,  which  were  admitted  to  probate  February 
9,  1894.  The  entire  estate  was  the  separate  property  of  de- 
cedent, and  was  appraised  in  1894  at  $1,383,184,  and  in  the 
final  account  set  down  at  $1,954,317. 


Estate  op  Doe.  61 

The  executors  named  in  the  will,  his  brothers,  Bartlett 
Doe  and  Charles  F.  Doe,  immediately  qualified  and  acted 
jointly  until  January  16,  1904,  when  Charles  died,  and  there- 
after Bartlett  acted  alone  until  March  16,  1905,  when  he  filed 
his  'final  account  and  petition  for  final  distribution  to  the 
persons  entitled  thereto. 

To  this  petition  the  former  widow,  now  remarried,  made 
response,  claiming  that  decedent  died  intestate  as  to  all  the 
property  which  he  owned  except  what  was  disposed  of  by  the 
second,  third,  fourth,  fifth,  sixth,  seventh,  eighth,  ninth,  tenth 
and  eleventh  paragraphs  of  his  will,  and  she  asked,  therefore, 
that  there  be  distributed  to  her  in  fee  simple  absolute  one- 
half  of  all  his  estate  not  included  in  the  clauses  enumerated. 

The  codicil  confirms  the  will  down  to  the  twelfth  para- 
graph, which  it  revokes,  substituting  therefor  other  provi- 
sions. 

The  paragraphs  necessary  to  consider  are  here  inserted. 

The  will  contained  the  following  provisions : 

"Twelfth — The  rest  and  residue  of  my  estate,  real,  per- 
sonal and  mixed,  of  every  nature  and  kind  whatsoever  of 
which  I  may  die  seized  or  possessed,  I  give,  devise  and  be- 
queath to  my  brothers  Bartlett  Doe  and  Charles  F.  Doe, 
hereinafter  named  as  the  Executors  of  this  my  last  Will,  in 
trust  nevertheless,  to  be  held  by  them  until  my  daughter 
^lary  Marguerite  now  One  year  old,  shall  have  reached  the 
age  of  Eighteen  years,  when  the  same  shall  be  distributed 
as  follows,  to-wit: 

*'To  my  said  daughter,  Mary  Marguerite  one-half  thereof, 
and  to  my  wife  Eleanor  Doe,  the  other  half  for  her  life, 
with  remainder  to  my  said  daughter  ]\Iary  INIarguerite. 
Should  my  said  wife  Eleanor  die  before  my  daughter  arrives 
at  the  age  of  Eighteen  years,  then  the  interest  hereby  devised 
and  bequeathed  to  my  said  wife,  to  go  to  my  said  daughter. 

"Thirteenth. — Should  my  said  daughter  ^lary  ^Marguerite 
die  before  she  arrives  at  the  age  of  p]ighteen  years  then  the  in- 
terest hereby  devised  to  my  said  brothers  Bartlett  and  Charles 
F.  Doe,  in  trust  for  my  said  daughter,  to  go  to  my  heirs,  who 
may  be  living  at  the  time  of  her  death,  and  to  be  by  my  said 


62  Coffey's  Probate  Decisions,  Vol.  1. 

brothers  distributed  to  my  said  heirs,  according  to  the  Stat- 
utes in  such  cases  made  and  provided. 

"Fourteenth.— I  hereby  nominate  and  appoint  my  broth- 
ers Bartlett  Doe  and  Charles  F.  Doe,  the  Executors  of  this 
my  last  Will,  hereby  expressly  waiving  the  giving  of  any 
bond  or  bonds,  for  the  discharge  of  their  duties  as  such 
Executors. 

"Fifteenth — I  give  and  grant  to  my  said  Executors  and 
Trustees  full  power  and  authority  to  sell  and  convey  all  or 
any  part  or  portion  of  my  said  ."'^^^state,  as  in  their  judgment 
they  shall  think  best,  and  to  re-in  /est  the  proceeds  from  time 
to  time  to  the  best  interest  of  those  concerned. 

"And  I  hereby  direct  my  said  Executors  to  pay  over  to  my 
said  wife  monthly,  until  my  said  daughter  arrives  at  the  age 
of  Eighteen  years,  the  sum  of  One  Thousand  Dollars  for  the 
following  purpose,  to-wit :  Five  Hundred  Dollars  for  the  sup- 
port of  my  said  wife,  and  Five  Hundred  Dollars  for  the  sup- 
port and  maintenance  of  my  said  daughter." 

In  the  codicil  to  the  will  it  is  provided : 

"First — I  hereby  re-publish  and  affirm  all  that  is  contained 
in  said  Will  down  to  the  ]2th  paragraph  thereof,  and  I 
hereby  revoke  and  annul  all  the  rest  and  remainder  thereof, 
to-wit:  all  that  is  contained  in  said  Will  beginning  with  said 
12th  paragraph  and  down  to  the  end  thereof,  and  in  lieu 
of  the  said  part  and  portion  so  annulled  and  revoked  do 
make,  publish  and  declare  this  Codicil  to  my  said  Will  in 
manner  following: 

"Second — I  give  and  devise  to  my  brothers  Bartlett  Doe 
and  Charles  F.  Doe  hereinafter  named  as  the  Executors  of 
this  my  last  Will  and  Testament  all  my  right,  title  and  inter- 
est in  and  to  all  the  certain  lots,  pieces  and  parcels  of  land 
situate,  lying  and  being  in  the  City  and  County  of  San 
Francisco    State  of  California,  and  described  as  follows: 

[Here  follow  the  descriptions  of  a  number  of  pieces  of 
improved  and  unimproved  real  property  in  San  Francisco.] 

"In  trust  nevertheless  for  my  wife  Eleanor  Doe  and  my 
daughter  INIary  Marguerite  Doe.  Said  trust  to  continue  dur- 
ing the  life  time  of  my  said  trustees,  and  upon  the  death  of 


Estate  op  Doe.  63 

either  of  said  trustees  the  trust  to  conJ;inue  and  to  be  carried 
out  and  into  effect  by  the  survivor,  and  to  terminate  only 
on  his  death. 

"Giving'  and  granting  unto  my  said  trustees  and  to  the 
survivor  upon  the  death  of  either  of  them  full  power  and 
authority  to  take  possession  of,  improve,  mortgage  and  con- 
vey my  said  interest  in  the  said  pieces  and  parcels  of  land  or 
either  of  them  as  they  may  deem  most  beneficial  to  the  inter- 
est of  all  concerned,  and  to  invest  and  reinvest  the  proceeds 
received  from  the  sale  of  the  same  from  time  to  time  as  in 
their  judgment  shall  be  for  the  best  interest  of  the  benefi- 
ciaries under  this  trust,  and  annually  to  pay  over  and  deliver 
to  the  Executors  of  this  my  last  Will,  the  rents,  issues  and 
profits  thereof  that  may  remain  after  paying  all  taxes,  street 
assessments  and  other  charges  upon  the  same,  and  costs  and 
expenses  incurred  in  making  improvements  thereon,  which 
rents,  issues  and  profits  my  said  Executors  are  hereby  re- 
quired and  directed  to  pay  over  as  they  may  be  received  to 
my  said  wife  Eleanor  Doe  and  my  said  daughter  Mary  Mar- 
guerite Doe. 

"And  upon  the  death  of  the  survivor  or  last  of  my  said 
trustees  and  the  termination  of  the  trust  thereby  created,  I 
give,  devise  and  bequeath  to  my  said  wife  Eleanor  and  to 
my  said  daughter  Mary  Marguerite  all  my  right,  title  and 
interest  in  and  to  said  pieces  and  parcels  of  property  herein- 
before described,  and  such  portion  of  the  rents,  issues  and 
profits  thereof  as  may  remain  in  the  hands  of  my  said  trus- 
tees, or  the  survivor  of  them  undisposed  of  at  the  termination 
of  this  trust,  and  also  my  right,  title  and  interest  in  and  to 
any  and  all  other  pieces  and  parcels  of  property  that  my  said 
trustees  may  purchase  and  acquire  from  the  proceeds  of  the 
sale  of  any  part  or  portion  of  said  real  estate  that  they  may 
sell  during  the  continuance  of  this  trust,  it  being  my  will, 
wish  and  purpose  that  on  the  death  of  the  last  of  my  said  trus- 
tees and  the  termination  of  said  trust  that  all  my  right,  title 
and  interest  in  said  trust  estate  shall  be  paid  over  and  deliv- 
ered to  my  said  wife  Eleanor  and  my  said  daughter  Mary  Mar- 
guerite, provided,  however,  that  the  interest  hereby  devised 
to   my  said  wife  Eleanor    to  be    for    and    continue  during 


564  Coffey's  Probate  Decisions,  Vol.  1. 

her  lifetime,  and  upon  her  death  to  go  to  my  said  daughter 
Mary  Marguerite. 

"Third — The  rest  and  residue  of  my  estate,  real,  personal 
and  mixed  of  every  nature  and  kind  whatsoever  of  which  I 
may  die  seized  or  possessed,  I  give,  devise  and  bequeath  to  my 
brothers  Bartlett  Doe  and  Charles  F.  Doe,  hereinafter  named 
as  the  Executors  of  this  my  last  Will,  in  trust  nevertheless 
to  be  held  by  them  until  my  daughter  Mary  Marguerite  shall 
have  reached  the  age  of  Eighteen  years,  when  the  same  shall 
be  distributed  as  follows,  to-wit: 

"To  my  said  daughter  Mary  Marguerite  one-half  thereof 
and  to  my  wife  Eleanor  Doe  the  other  half  for  her  life  with 
remainder  to  my  said  daughter  Mary  Marguerite.  Should 
my  said  wife  Eleanor  die  before  my  daughter  arrives  of  the 
age  of  Eighteen  years  then  the  interest  hereby  devised  and 
bequeathed  to  my  said  wife  to  go  to  my  said  daughter. 

"Fourth — Should  my  said  daughter  Mary  Marguerite  die 
before  she  arrives  at  the  age  of  Eighteen  years,  then  the 
•interest  hereby  devised  to  my  said  brothers  Bartlett  and 
Charles  F.  Doe  in  trust  for  my  said  daughter  to  go  to  my 
heirs,  who  may  be  living  at  the  time  of  her  death,  and  to  be 
by  my  said  brothers  distributed  to  my  said  heirs  according 
to  the  statutes  in  such  cases  made  and  provided. 

"Fifth — My  said  brothers  Bartlett  Doe  and  Charles  F.  Doe 
are  interested  in  said  pieces  and  parcels  of  land  mentioned 
and  referred  to  in  paragraph  2  hereof,  and  are  owners  thereof 
with  me  as  tenants  in  common,  our  interests  therein  being  in 
common  and  undivided,  and  it  being  the  wish,  purpose  and 
intent  of  the  several  owners  of  said  pieces  and  parcels  of 
land  to  keep  our  interests  therein  intact  and  undivided  during 
the  lifetime  of  all  and  each  of  us,  I  have  made  the  provision 
herein  contained  to  accomplish  that  purpose,  and  my  said 
brothers  being  like-minded  have  made  their  Wills  with  like 
provisions  to  effectuate  the  said  object.  Said  Wills  having 
been  made  upon  a  mutual  understanding  between  us  to  the 
above  effect. 

"Sixth — I  hereby  nominate  and  appoint  my  said  brothers 
Bartlett  Doe  and  Charles  F.  Doe,  the  Executors  of  this,  my 
last  Will  and  Testament  without  bonds,  hereby  waiving  the 


Estate  of  Doe.  65 

giving  of  any  bond  or  other  undertaking  for  the  faithful  dis- 
charge of  their  duties  under  this  Will  and  as  Executors  and 
Trustees  hereunder. 

"Eighth — I  hereby  direct  my  said  Executors  to  pay  over 
to  n>y  said  wife  monthly  until  my  said  daughter  arrives  at 
the  age  of  Eighteen  years,  the  sum  of  One  thousand  Dollars 
for  the  following  purpose,  to-wit:  Five  hundred  Dollars  for 
the  support  of  my  said  wife,  and  Five  hundred  Dollars  for 
the  support  and  maintenance  of  my  said  daughter." 

The  purpose  of  testator  is  patent.  Whether  or  not  he  has 
legally  accomplished  that  purpose,  is  the  question.  For  ten 
years  the  trust  remained  unassailed,  but  now  it  is  challenged 
as  invalid  because  it  is  contrary  to  the  code,  as  (1)  the  term 
is  not  properly  constituted,  (2)  the  devise  to  the  trustees 
"for"  the  widow  and  daughter  is  void,  (3)  the  direction  to 
the  trustees  to  pay  taxes,  street  assessments  and  other  charges 
oat  of  the  income  is  a  direction  for  an  unlawful  accumula- 
tion, (4)  the  gift  of  income  annually  is  a  gift  of  an  unlaw- 
fully accumulated  fund  and  is  void,  (5)  the  direction  to  the 
trustees  to  pay  over  the  residue  of  the  income  after  deducting 
moneys  expended  for  purposes  shown  to  be  unlawful  is  void, 
(6)  if  the  mode  in  which  the  testator  has  framed  his  gift 
fails  for  illegality,  the  court  cannot  provide  a  valid  mode 
in  order  to  effectuate  his  intent;  (7)  the  trust  to  pay  the 
residue  of  the  income  to  the  executor,  followed  by  the  direc- 
tion to  the  executor  to  pay  it  to  the  widow  and  daughter,  is 
void;  (8)  the  subsequent  limitations  of  the  trust  property 
fall  with  the  illegal  trust,  for  where  valid  and  invalid  pro- 
visions are  so  blended  that  it  is  impossible  to  separate  them 
and  give  effect  to  the  one  without  doing  violence  to  the  in- 
tention of  the  trustor,  the  whole  trust  must  fall;  (9)  there  is 
no  devise  over  of  the  trust  property  in  the  event  of  the 
failure  of  the  trust;  (10)  the  gift  is  contingent  "upon  the 
termination  of  the  trust";  the  court  cannot  transmute  it  into 
a  vested  remainder;  (11)  the  intended  mode  of  passing  the 
property  has  failed  for  illegality,  and  the  court  cannot  sup- 
ply a  valid  mode;  (12)  the  property  embraced  in  the  void 
trust  does  not  pass  under  the  third  paragraph  of  the  codicil ; 
(13)  the  trust  which  the  testator  has  attempted  to  create  in 

Prob.  Dec,  Vol.  I — 5 


Q6  Coffey's  Probate  Decisions,  Vol.  1. 

the  third  and  fourth  paragraphs  to  the  codicil  is  void  (14) 
the  trust  to  distribute  is  unauthorized  by  section  857,  Civil 
Code. 

We  are  reminded  in  undertaking  to  construe  this  instru- 
ment of  the  duty  of  the  court  to  disregard  the  design  of  the 
testator  unless  it  comports  with  the  rules  of  law.  The  func- 
tion of  the  court  is  to  determine  the  intention  of  the  testator 
and  then  to  apply  the  canons  of  construction,  and  not  to  con- 
stitute a  valid  for  an  invalid  devise.  We  are  told  that  the 
best  method  to  be  pursued  in  such  case  is  that  in  Cunliffe  v. 
Brancker  (L.  R.    3  Ch.  D.  899),  where  Sir  Geo.  Jessel  said: 

"All  we  have  to  do  is  to  construe  the  instrument  fairly, 
find  out  what  it  means,  and  then  to  apply  the  established 
rules  of  law  to  the  instrument,  and  see  what  the  effect  will 
be. 

"How  far  judges  may  be,  or  ought  to  be,  able  to  defeat  a 
rule  of  law  of  which  they  disapprove  I  cannot  say.  It  is 
the  duty  of  a  judge  not  to  allow  himself  to  be  so  influenced, 
but  to  construe  the  instrument  in  a  proper  way,  to  arrive  at 
its  meaning  independently  of  the  results,  and  then  apply  the 
law.  This  has  been  laid  down  over  and  over  again  with  re- 
gard to  another  rule  of  law — the  rule  against  remoteness  or 
perpetuity — but  I  do  not  see  that,  because  in  the  opinion  of 
the  judge  the  one  rule  of  lav/  is  reasonable  and  the  other  un- 
reasonable, the  rules  of  construction  are  to  be  altered." 

Of  two  modes  of  interpreting  a  will,  says  the  code,  that  is 
to  be  preferred  which  will  prevent  a  total  intestacy;  but  the 
supreme  court  has  said  that  if  the  legal  effect  of  the  expressed 
intent  of  testator  is  intestacy,  it  will  be  presumed  that  he  de- 
signed that  result.  If  a  fair  interpretation  of  the  will  results 
in  total  or  partial  intestacy  because  of  rules  prohibiting  the 
devises  attempted,  the  court  may  not  alter  the  construction  to 
avoid  or  evade  that  consequence. 

The  first  point  made  by  respondent  is  that  the  trust  is 
necessarily  void  for  the  reason  that  its  term  is  not  properly 
constituted,  as  the  trust  attempted  to  be  created  is  measured 
by  the  lives  of  two  persons — the  two  trustees — and  by  the  life 
of  the  survivor  of  them,  and  neither  of  said  persons  had  any 
beneficial  interest  in  the  trust  whatever.     It  was  not  to  cease- 


Estate  of  Doe.  67 

with  the  death  of  the  widow  or  the  daughter,  but  was  in- 
tended to  continue  during  the  lives  of  the  trustees,  whether 
the  daughter  should  die  or  whether  the  widow  should  die, 
or  whether  they  both  should  die  during  the  lifetime  of  these 
trustees.  Upon  this  point  it  is  argued  that  the  meaning  of 
the  testator  is  manifest.  The  authorit}^  for  this  proposition 
is  Downing  v.  Marshall,  23  N.  Y.  377,  but  it  seems  that  that 
decision  has  been  discredited  in  later  eases  and  declared  dic- 
tum. At  the  time,  however,  that  the  California  codifiers  cop- 
ied from  the  New  York  law  the  present  code  provision,  that 
case  was  supposed  to  be  sound,  and,  it  is  asserted,  should  be  re- 
ceived as  controlling  in  this  court,  for  it  is  a  general  canon 
of  construction  that  if  statute  adopted  from  another  state 
had  been  construed  by  the  courts  of  that  state  prior  to  its 
adoption  here,  the  same  construction  should  be  given  ordin- 
arily in  this  state,  but  this  rule  has  not  always  been  followed, 
and  has  been  modified  in  cases,  as,  for  example,  where  the 
courts  of  the  state  from  which  the  statute  had  been  taken 
have  since  altered  their  opinion  as  to  its  construction.  The 
rule  is  not  an  absolute  one,  especially  where  there  is  but  a 
single  decision,  and  that  subsequently  discarded  as  authority 
in  the  same  state.  When,  therefore,  it  is  argued  that  at  the 
time  we  took  our  statute  of  uses  and  trusts  from  New  York, 
we  accepted  the  construction  given  in  Downing  v.  Marshal, 
the  answer  is  acute  that,  as  the  appellate  tribunal  of  that 
state  has  renounced  that  case  as  authority,  it  has  no  force 
here,  and  it  being  the  sole  support  of  respondent  on  this 
point,  his  contention  is  without  basis. 

It  is  not  the  wish  of  this  court  to  lengthen  its  opinion  by 
extracts  from  cases,  but,  so  far  as  petitioner  relies  upon 
Downing  v.  IMarshal.  it  would  seem  that  the  views  of  that 
case  cannot  govern  here:  Crooke  v.  County  of  Kings,  97  N. 
Y.  421 ;  Bailey  v.  Bailey,  97  N.  Y.  467. 

These  cases  are  substantially  identical,  and  in  the  latter 
one,  as  counsel  for  respondent  says  on  page  63  of  brief,  the 
judge  writing  the  opinion  saw  fit  "to  criticise  in  a  liostile 
manner  the  decision  of  Downing  v.  ^Marshall  and  implies  that 
the  opinion  in  that  case  relating  to  the  lives  measuring  the 
trust  was  dictum." 


68  Coffey's  Probate  Decisions,  Vol.  1. 

It  is  worth  while,  perhaps,  to  make  this  criticism  clear  in 
connectiou  with  the  case  at  bar,  to  quote  from  the  opinion, 
which  was  concurred  in  by  all  the  judges: 

"We  do  not  concur  in  the  view  expressed  by  the  learned 
judge  (in  Downing  v.  Marshall)  as  to  the  construction  of  the 
statute  cited,  and  upon  a  careful  examination  of  the  same 
we  are  of  the  opinion  that  the  limitation  provided  is  a  limi- 
tation of  time  and  not  a  personal  one.     We  think  that  a  cor- 
rect interpretation  of  the  same  authorizes  the  naming  of  the 
lives  of  strangers  as  well  as  beneficiaries  as  the  limitation  of 
the  devise.     No  reason  exists  why  the  lives  named  in  a  devise 
of  this  character  should  be  confined  to  those  who  are  inter- 
ested in  the  estate,  and  it  was  the  evident  purpose  of  the 
statutes  to  confer  upon  the  testator  the  power  to  fix  such  lives 
as  he  chose  to  designate  within  its  terms.     This  is  very  mani- 
fest upon  examination  of  the  various  provisions  relating  to 
the  subject.     Under  the  statute  relating  to  uses  and  trusts, 
an  express  trust  may  be  created  'to  receive  the  rents  and 
profits  of  land  and  apply  them  to  the  use  of  any  person 
during  the  life  of  such  person  or  for  a  shorter  term,  subject 
to  the  rules  prescribed  in  the  first  article  of  this  title ' :   1 
Rev.  Stats.  728,  sec.  55,  subd.  3.     Among  the  rules  referred 
to  is  that  contained  in  a  previous  provision  of  the  statute. 
(1  Rev.  Stats.  723,  see.  15)  which  declares  that  'the  absolute 
power  of  alienation  shall  not  be  suspended  by  any  limitation 
or  condition  whatever  for  a  longer  period  than  during  the 
continuance  of  two  lives  in  being  at  the  creation  of  the  estate. ' 
These  two  statutes  must  be  considered  and  read  in  connection 
with  each  other  in  giving  an  interpretation  to  their  meaning. 
The  first   (section  55)    provides  for  a  trust  for  the  use  of 
a  person  during  the  life  of  such  person  or  a  less  period,  and 
the  second  (section  15)  limits  the  time  during  which  the  trust 
may  be  held.     In  the  former  nothing  is  said  about  benefi- 
ciaries, and,  standing  alone,  it  is  not  apparent  that  the  limi- 
tation is  confined  to  their  lives.     The  latter  section  alone  con- 
tains the  limitation,  and  it  is  not  restricted  to  any  class  of 
lives  and  embraces  any  lives  upon  which  the  trust  created  is 
limited.     To  bring  a  case  within  the  rule  provided  for,  it  is 
not  required,  we  think,  that  the  lives  during  which  the  power 


Estate  of  Doe.  69 

of  alienation  is  suspended  should  be  those  of  beneficiaries, 
and  if  the  estate  may  be  alienated  absolutely  at  the  expiration 
of  any  two  lives  in  being  at  the  time  of  its  creation,  the  pro- 
vision is  complied  with.  To  illustrate :  if  a  trust  is  created 
to  receive  rents  and  profits  and  apply  them  to  the  use  of  four 
joint  lives,  upon  the  death  of  either,  then  to  the  use  of  the 
survivors  and  so  on  until  the  death  of  the  last  survivor,  the 
trust  in  the  ease  of  each  beneficiary  is  simply  during  his  life, 
or  for  a  shorter  period — that  is,  as  to  the  share  to  which  he 
is  entitled  at  the  outset  it  is  during  his  life.  If  he  survives 
either  of  the  other  beneficiaries,  then  he  has  an  additional 
portion  during  the  remainder  of  his  life.  But  the  trust 
would  be  void  as  it  would  suspend  the  power  of  alienation 
for  more  than  two  lives.  If,  however,  a  condition  be  added 
to  the  trust  that  in  any  event  it  shall  terminate  upon  the  death 
of  tvvo  persons  who  are  strangers  to  the  trust,  then  the  rule 
referred  to  is  complied  with.  In  that  case  in  no  event  can 
the  power  of  alienation  be  suspended  beyond  these  two  speci- 
fied lives.  Upon  the  death  of  the  survivor  of  the  two 
strangers  named,  although  all  the  beneficiaries  be  living,  the 
trust  estate  terminates.  The  trust,  then,  while  it  can  only 
exist  during  the  lives  of  the  two  strangers,  is  also  for  the  life 
of  each  beneficiary  subject  to  be  terminated  by  the  death  of 
the  lives  named  during  his  or  her  life.  Its  continuance  is  not 
dependent  upon  the  lives  of  the  beneficiaries,  but  upon  the 
lives  of  strangers.  When  they  are  ended,  the  two  lives  named 
have  passed  away  and  the  limitation  ceases.  The  fact  that  a 
number  of  persons  are  to  be  benefited  under  the  trust  during 
the  lives  of  the  strangers  named  does  not  create  a  trust 
beyond  two  lives  in  being  contrary  to  the  statute.  It  follows 
that  the  limitation  contained  in  the  sixth  clause  of  the  tes- 
tator's will  was  not  a  violation  of  the  statute,  and  that  the 
provisions  therein  were  valid,  and  the  same  should  be  upheld. 
"Since  the  foregoing  was  written,  the  cases  of  Crooke  v. 
County  of  Kings  and  Crooke  v.  Prince,  which  were  first 
argued  before  this  court  in  the  month  of  June,  1883.  have 
been  heard  upon  a  reargument.  These  cases  involved  the  con- 
struction of  the  provisions  of  a  will  where  a  trust  was  created 
which  depended  upon  the  life  of  a  stranger  named  therein. 


70  Coffey's  Probate  Decisions,  Vol.  1. 

No  question  was  made  on  the  argument  that  the  provision 
referred  to  was  invalid  upon  the  ground  that  the  trust 
created  depended  upon  the  life  of  a  person  who  M^as  not  a 
beneficiary,  and  a  reargument  was  ordered  upon  another  and 
a  different  question.  Upon  the  last  argument,  however,  the 
ciuestion  now  considered,  which  was  previously  overlooked, 
was  fully  presented  and  the  court  arrived  at  the  conclusion 
that  a  trust,  of  the  character  referred  to,  was  valid,  and  not 
in  violation  of  the  statute.  The  subject  is  fully  considered 
in  the  opinion  of  the  court  by  Finch,  J.,  and  it  disposes  of  the 
question  presented  in  the  case  at  bar.  As  that  authority  is 
directly  in  point,  it  is  decisive  in  this  case":  Bailey  v.  Bailey, 
97  N.  Y.  467. 

Counsel  for  respondent  rel}^  absolutely  upon  Downing  v. 
Marshall,  and  quote  this  passage  to  ilkistrate  this  point: 

' '  But,  although  trusts  to  receive  and  apply  rents  and  profit^i 
ma.y  be  created  under  the  statute  of  uses  and  trusts,,  the  one 
in  question  is  not  constituted  in  the  manner  which  that  stat- 
ute prescribes.  The  application  of  rents  and  profits  must 
be  'to  the  use  of  any  person  during  the  life  of  such  person, 
or  for  any  shorter  term':  1  Rev.  Stats.,  p.  728,  sec.  55,  subd. 
3.  The  trust  must,  therefore,  be  made  dependent  on  the  life 
of  the  beneficiary.  In  this  case  the  beneficiaries  are  asso- 
ciations, incorporated  or  unincorporated;  while  the  lives  on 
which  the  trust  depends  are  those  of  two  natural  persons 
having  no  interest  in  its  performance.  Such  a  limitation  is 
plainly  unsupported  by  any  construction  which  we  can  give 
to  the  language  of  the  statute":  Downing  v.  Marshall,  23  N. 
Y.  377,  80  Am.  Dec.  290. 

Counsel  contend  that  section  857,  subdivision  3,  of  the 
California  Civil  Code  is  even  more  explicit  in  this  connection 
than  is  the  section  of  the  New  York  Revised  Statutes  cited 
in  the  foregoing  extract.  Subdivision  3  of  section  857  of 
our  code  is  identical  with  subdivision  3  of  section  285  of  the 
proposed  Civil  Code  of  New  York,  the  so-called  "Field 
Code,"  printed  1865,  which  had  been  revised  in  view  of 
Downing  v.  Marshall,  and  counsel  insist  that  thereby  our  code 
must  be  construed  in  the  light  of  that  decision;  but  we  have 
seen  that  this  rule  is  not  uniform,  and  that  our  code  provision, 


Estate  of  Doe.  71 

though  taken  from  New  York,  receiving  there  the  construc- 
tion claimed  before  its  adoption  here,  such  decision  does  not 
necessarily  control;  it  may  be  persuasive,  but  not  conclusive. 
Depending  upon  that  decision,  respondent  asserts  that  the 
trust  here  is  void,  for  it  does  not  rest  on  the  lives  of  the  bene- 
■  ficiaries ;  the  widow  and  daughter  may  both  die ;  the  executors, 
to  whom  the  payment  of  income  is  to  be  made  in  the  first 
instance,  may  change  from  time  to  time  and  die,  but  the  trust 
is  to  terminate  only  upon  the  death  of  the  surviving  trustee; 
but  this  view  does  not  accord  with  the  accredited  authorities 
cited,  which  declare  that  the  inherent  character  of  the  trust 
and  its  essential  limitations  may  form  an  element  in  the  con- 
struction to  be  given  to  the  language  creating  it.  As  said 
in  Crooke  v.  County  of  Kings,  "that  character  and  those 
limitations  are  such  that  the  trust  cannot  exceed  in  duration 
the  lives  of  the  beneficiaries,  because  upon  their  death  its 
purpose  is  accomplished,  and  a  trust  supposes  a  beneficiary, 
and  so  its  very  creation  implies  necessarily,  without  express 
words,  a  termination  at  such  period.  If,  then,  in  creating 
the  trust,  one  or  two  lives  of  persons  not  beneficiaries  are 
designated  as  its  measure  of  duration,  it  follows  that  such 
designation  can  never  be  intended  to  lengthen  the  trust 
lieyond  its  possibility  of  existence,  and  that  the  language 
which  confines  its  benefits  to  persons  who  are  or  may  be  living, 
sufficiently  indicates  an  intention  to  end  it  at  their  deaths, 
unless  it  is  earlier  terminated  by  the  close  of  the  selected  life, 
or  lives.  And  when,  in  the  present  case,  the  vesting  of  the 
fee  was  fixed  at  the  death  of  the  trustee,  the  close  of  the 
selected  life,  that  must  be  read  and  construed  in  connection 
with  the  other  necessary  limit  indicated  by  the  language 
declaring  the  purpose  of  the  trust,  and  held  to  mean  that  the 
vesting  is  to  take  place  at  the  end  of  the  designated  life,  or 
at  the  period  less  than  that  marked  by  the  earlier  death  of 
all  the  beneficiaries.  We  are  not  to  gather,  from  the  language 
of  the  will,  the  absurd  and  destructive  intention  to  continue 
a  trust  beyond  the  limit  implied  by  its  own  nature  and  in- 
herent character,  unless  compelled  to  it  by  the  language  which 
will  admit  of  no  other  interpretation." 


72  Coffey's  Probate  Decisions,  Vol.  1. 

The  language  of  the  trust  does  not  necessarily  bear  the 
meaning  attributed  to  it  by  respondent.  We  should  not  de- 
stroy the  trust,  unless  there  is  no  other  recourse  in  interpret- 
ing the  words  of  testator.  If  the  words  of  this  will  can  be 
construed  to  preserve  its  purpose,  the  court  should  not  be 
swift  to  subvert  it. 

The  intention  of  the  testator  w^as  not  to  create  a  trust  to 
continue  beyond  the  life  of  his  wife  and  child.  Such  a  con- 
struction does  not  seem  to  this  court  reasonable.  The  as- 
sumption appears  to  have  been  that  they  would  survive  the 
trustees.  Certainly  the  duration  of  the  trust  cannot  be  as- 
sumed to  be  beyond  the  lives  of  the  beneficiaries,  for  it  w^as 
possible  that  they  might  predecease  the  trustees,  in  which 
case  the  trust  would  terminate. 

Upon  this  point,  the  court  cannot  sustain  the  contention 
of  respondent. 

What  was  the  object  of  this  trust?  To  pay  over  the  rents 
and  profits  to  the  surviving  wife  and  daughter.  When  they 
die,  it  ceases,  because  the  object  is  accomplished.  When  the 
purpose  for  which  an  express  trust  was  created  ceases,  the 
estate  of  the  trustee  also  ceases:  Civ.  Code,  sec.  871.  The 
measure  of  the  estate  of  the  trustees  is  the  necessity  of  the 
trust,  and  in  making  the  provision  for  the  payment  of  the 
income  it  is  certain  that  only  the  mother  and  daughter  were 
intended  as  recipients,  and,  therefore,  the  trust  term  could 
not  extend  beyond  their  existence. 

Is  the  devise  of  the  trustees  "for"  the  widow  and  daugh- 
ter void?  Respondent  relies  upon  the  case  of  Wittfield  v. 
Forster  124  Cal.  418,  57  Pac.  219,  but  after  a  careful  reading 
of  that  case  this  court  fails  to  see  its  application.  The  syl- 
labus shows  with  sufficient  clearness  that  the  case  cited  is 
not  analogous  to  the  one  at  bar.  "A  conveyance  of  all  the 
real  and  personal  property  of  the  grantor  to  a  trustee  in 
trust  for  an  unincorporated  association  named,  to  have  and 
to  hold  to  the  trustee  named,  'his  successors  and  assigns, 
forever,'  without  further  specification  as  to  the  purpose  of 
the  trust,  or  as  to  the  duration  of  the  estate,  or  as  to  the 
nature  and  quantity  of  interest  of  the  beneficiaries,  or  as 
to  the  manner  in  which  the  trust  is  to  be  performed  does  not 
create  a  valid  trust  as  to  the  real  property,  within  any  of 


Estate  of  Doe.  73" 

the  provisions  of  section  857  of  the  Civil  Code,  and  under 
section  2221  of  that  code,  the  whole  trust,  both  as  to  the 
real  and  personal  property,  is  void  for  uncertainty."  In 
the  case  here  there  seems  to  be  a  substantial  difference.  In 
that  case  there  was  a  devise  "in  trust  for"  another.  There 
were  no  trust  purposes  specified  and  no  other  duties  imposed 
upon  the  trustee.  It  was  a  bare  trust  for  another.  In  this 
case,  while  the  language  is  "in  trust  for"  others,  the  trust 
purposes  are  specified  and  trust  duties  are  imposed. 

Is  the  direction  to  the  trustees  to  pay  taxes,  street  assess- 
ments and  other  charges,  and  expenses  incurred  in  improve- 
ments out  of  the  income  a  direction  for  an  unlawful  accumu- 
lation? This  point  has  been  presented  with  fullness  and 
force  by  counsel  for  respondent,  who,  while  admitting  that, 
generally  speaking,  it  is  undoubtedly  the  rule  that  a  direc- 
tion for  an  invalid  accumulation  is  void  only  pro  tanto,  and 
passes  -over  the  income  to  the  owners  of  the  next  eventual 
estate,  insist  that  the  peculiar  effect  of  the  void  provision 
here  is  to  render  void  the  entire  instrument.  Great  stress 
is  laid  upon  this  provision,  and  it  is  argued  that  assuming 
the  power  to  be  susceptible  of  being  construed  as  a  trust  pur- 
pose, the  trust  is  annually  to  pay  over  and  deliver  to  the  ex- 
ecutors the  rents,  issues  and  profits  of  the  trust  propert}' 
that  may  remain  after  paying  all  taxes,  street  assessments 
or  other  charges  upon  the  same  and  expenses  incurred  in 
making  improvements  thereon.  This  is  not  a  trust  to  pay 
over  rents  and  profits,  but  only  to  pay  over  what  may  be 
left  of  the  rents  and  profits  after  the  same  have  been  applied 
to  the  payment  of  the  items  mentioned. 

Each  case  of  this  class  must  be  considered  according  to  its 
own  circumstances,  and  the  expressions  of  the  testator  should 
not  be  interpreted  in  a  manner  subversive  of  his  intention 
unless  that  be  plainly  contrary  to  law.  As  was  said  in  a 
case  recently  decided  by. our  supreme  court,  Matter  of  Iley- 
Avood,  "in  construing  testamentary  dispositions  of  property, 
it  is  a  cardinal  rule,  that  a  liberal  construction  should  be 
given  to  them,  and  all  reasonable  intendments  indulged  in, 
with  a  view  of  sustaining  the  purpose  which  it  is  disclosed 
the  testator  had  in  view.  No  particular  form  of  expression 
is  necessary  to  constitute  a  valid  trust.     It  is  sufficient  that,. 


74  Coffey's  Probate  Decisions,  Vol.  1. 

from  the  language  used,  the  intention  of  the  testator  is  ap- 
parent, and  that  the  disposition  in  trust  which  he  endeavors 
to  make  of  his  estate  is  consistent  with  the  rules  of  law. 
The  intent  of  the  testator  is  the  matter  for  primary  consid- 
eration, and  it  is  innnaterial  what  method  of  expression  is 
employed  as  long  as  that  intention  can  be  ascertained." 

In  Hill  on  Trustees,  101,  it  is  remarked  that  it  is  one  of  the 
fixed  rules  of  equitable  construction  that  there  is  no  magic  in 
particular  words,  and  our  appellate  court  has  declared  that 
it  is,  of  course,  "a  fundamental  principle  that  a  construc- 
tion of  a  will  favorable  to  testacy  will  always  obtain  when 
the  language  used  reasonably  admits  of  such  construction, 
and  that  it  will  not  be  held  to  contain  a  void  trust  unless 
the  invalidity  of  the  trust  is  beyond  question  ....  and 
cannot  be  reasonably  construed  otherwise":  Estate  of 
Dunphy,  147  Cal.  95,  81  Pac.  315. 

It  is  insisted  in  the  case  at  bar  that  the  trusts  are  void, 
being  for  purposes  not  specified  in  section  857  of  the  Civil 
Code,  and  as  they  are  inextricably  interwoven  with  the  trust 
to  pay  the  remainder  of  the  rents,  that  trust  falls  with  them. 

If  we  are  to  be  guided  by  the  explicit  indication  of  the 
purpose  of  the  testator,  it  would  be  doing  violence  to  his  in- 
tention so  to  construe  the  terms  of  the  will  in  the  trust  under 
consideration.  He  devised  the  specifically  described  prop- 
erties to  trustees,  for  the  benefit  of  two  beneficiaries,  his  wife 
and  daughter.  The  provisions  clearly  indicate  that  it  was 
the  intention  of  the  testator  that  they  should  receive  the  in- 
come from  the  trust  property. 

What  were  these  trustees  to  do  in  the  management  of  this 
trust?  It  clearly  appears  that  the  motive  was  the  main- 
tenance of  the  minor  and  her  mother.  They  were  to  receive 
the  rents,  issues  and  profits  after  the  discharge  of  incidental 
expenses,  such  as  are  set  forth.  They  alone  are  entitled  to 
the  income  from  the  trust  property,  and  they  are  entitled 
in  due  season  to  the  corpus  of  the  trust  estate.  It  is  argued 
that  the  direction  of  the  will  to  discharge  out  of  the  income 
the  costs  and  expenses  incurred  and  incident  to  the  admin- 
istration of  the  trust  is  void,  and  that  no  matter  how  clearly 
a  testator  may  have  expressed  himself  in  this  regard,  his 
intent  cannot  prevail;  in  other  words,  the  essential  purpose 


Estate  of  Doe.  75 

of  the  trust  is  to  be  sacrificed  to  the  incidental  necessities 
of  its  fulfillment.  It  is  the  duty  of  the  trustees  to  hold  the 
property  and  administer  it;  subject  to  the  trust,  the  estate 
is  vested  in  them.  How  can  they  discharge  their  duty  if 
they  are  restricted  to  the  extent  contended  for  by  counsel  ? 
Even  if  this  part  of  the  clause  were  invalid,  it  is  not  so 
inextricably  interwoven  or  so  essentially  a  part  of  the  trust 
scheme  that  all  the  other  trust  provisions  would  fall  if  it 
could  not  be  sustained.  In  any  event  the  entire  income 
would  go  to  mother  and  daughter.  That  is  the  express  di- 
rection of  the  testator.  If  he  authorized  an  invalid  accu- 
mulation of  a  portion  of  that  income,  that  provision  failing 
the  amount  would  necessarily  be  payable  to  them.  The  in- 
valid clause  is  not  an  integral  part  of  the  scheme ;  it  is  a 
provision  entirely  separable  from  it;  it  is  plain  that  the 
primary  trust  would  be  unaffected  and  the  primary  purpose 
of  the  testator  fulfilled,  even  if  this  direction  should  be  held 
void ;  but  for  the  reasons  suggested,  it  seems  to  this  court, 
that,  in  the  circumstances  of  this  case,  the  direction  is  not 
unlawful. 

It  is  contended  that  the  provision  for  retaining  the  in- 
come and  paying  it  over  annually  is  void;  but  this  is  a  mere 
matter  of  management,  and  it  seems  to  this  court  that  to 
accept  this  argument  would  be  to  carry  the  doctrine  in- 
voked to  an  extreme.  Where  the  entire  net  income  is  dis- 
tributed annually,  the  courts  have  held  that  there  is  no 
accumulation.  The  purpose  of  the  statute  is  to  prevent  per- 
manent accumulations,  not  to  interfere  with  judicious  man- 
agement. The  cases  are  numerous  on  this  point  and  cita- 
tions need  not  be  multiplied. 

Counsel  are  insistent  upon  the  proposition  that  the  tes- 
tator did  not  give  to  his  widow  and  his  child  the  whole 
income  of  his  estate,  but  only  the  residue  after  certain 
charges  were  to  be  paid,  and  that,  therefore,  the  direction 
to  the  trustees  to  pay  over  the  residue  of  the  income  after 
deducting  moneys  expended  for  purposes  shown  to  be  unlaw- 
ful is  void;  and,  hence,  if  the  mode  prescribed  is  illegal,  the 
court  cannot  substitute  a  valid  mode,  no  matter  how  obvious 
his  intent;  and,  that  the  trust  to  pay  the  residue  of  the  in- 
come to  the  executors  by  them  to  be  paid  to  the  widow,  is 


76  Coffey's  Probate  Decisions,  Vol.  1. 

void;  and  that  the  subsequent  limitations  of  the  trust  prop- 
erty fall  with  the  illegal  trust,  for  the  reason  that  they 
are  inseparably  blended.  These  points  might  be  judicially 
treated  at  greater  length,  but  it  would  serve  no  purpose, 
since  their  substance  has  been  discussed  in  the  preceding 
pages.  This  court  does  not  agree  with  counsel  for  the 
widow  in  the  conclusions  they  deduce  and  apply  from  the 
abstract  rules  of  law.  As  counsel  say,  the  scheme  of  the  will 
is  perfectly  clear;  but  they  claim  that  the  testator  would 
not,  if  properly  advised,  have  made  the  disposition  that  he 
did,  for  they  believe  that  he  would  not  have  liked  the  idea 
that  at  the  age  of  eighteen  years  this  child  would  have  come 
into  the  whole  of  this  vast  estate,  for  he  manifested  regard 
for  and  confidence  in  his  widow,  and  it  seems  likely,  if  they 
could  indulge  in  speculation,  that  he  would  have  preferred 
in  such  circumstances  that  the  mother  of  his  child,  her  nat- 
ural protector,  should  have  one-half  of  his  property.  But 
this  is  speculation  on  the  part  of  counsel.  What  testator 
meant  is  to  be  tested  by  what  he  said. 

In  the  paragraph  of  the  codicil  which  creates  the  trust 
embracing  specific  property,  it  is  provided  that,  "upon  the 
death  of  the  survivor  or  last  of  my  said  trustees,  and  the 
termination  of  the  trust  hereby  created,  I  give,  devise  and 
bequeath  to  my  said  wife  Eleanor  and  to  my  said  daughter 
Marguerite"  all  the  property  embraced  in  the  trust,  "pro- 
vided, however,  that  the  interest  hereby  devised  to  my  said 
wife  Eleanor  to  be  for  and  continue  during  her  lifetime, 
and  upon  her  death  to  go  to  my  said  daughter  Mary  Mar- 
guerite. ' ' 

It  will  be  observed,  therefore,  that,  subject  to  the  devise 
of  the  trustees,  all  of  the  property  embraced  within  the 
trust  w^as  devised  to  the  widow  and  daughter,  one-half  to 
the  daughter  absolutely  and  the  other  half  to  her,  but  sub- 
ject to  a  life  estate  in  her  mother.  Such  a  devise  is  per- 
fectly valid. 

"A  future  estate  may  be  limited  by  the  act  of  the  party 
to  commence  in  possession  at  a  future  day,  either  without 
the  intervention  of  a  precedent  estate,  or  on  the  termina- 
tion, by  lapse  of  time  or  otherwise,  of  a  precedent  estate 
created  at  the  same  time":  Civ.  Code,  sec.  767. 


Estate  of  Doe.  77 

Nor  would  the  estate  devised  to  the  wife  and  daughter 
of  the  testator  be  defeated  by  the  invalidity  of  the  devise 
in  trust  of  the  intermediate  estate.  The  rule  that  a  future 
estate  is  not  affected  by  the  destruction  of  a  precedent  es- 
tate is  recognized  in  the  following  provisions  of  the  Civil 
Code: 

"No  future  interest  can  be  defeated  or  barred  by  any 
alienation  or  other  act  of  the  owner  of  the  intermediate  or 
precedent  interest,  nor  by  any  destruction  of  such  prece- 
dent interest  by  forfeiture,  surrender,  merger,  or  otherwise, 
except  as  provided  by  the  next  section,  or  where  a  forfeiture 
is  imposed  by  statute  as  a  penalty  for  the  violation  there- 
of": Civ.  Code,  sec.  741. 

"No  future  interest,  valid  in  its  creation,  is  defeated  by 
the  determination  of  the  precedent  interest  before  the  hap- 
pening of  the  contingency  on  which  the  future  interest  is 
limited  to  take  eft'ect;  but  should  such  contingency  after- 
ward happen,  the  future  interest  takes  effect  in  the  same 
manner,  and  to  the  same  extent,  as  if  the  precedent  interest 
had  continued  to  the  same  period":  Civ.  Code,  sec.  742. 

Counsel  for  the  widow  argue  that  there  is  no  devise  over 
of  the  trust  property  in  the  event  of  the  failure  of  the 
trust,  and  that  the  gift  is  contingent  "upon  the  termination 
of  the  trust"  and  that  the  court  cannot  transmute  it  into 
a  vested  remainder,  but  this  argument  seems  to  be  answered 
by  saying  that  the  testator  did  not  contemplate  a  contin- 
gency such  as  is  suggested;  he  must  have  assumed  the  valid- 
ity of  the  trust  and  that  it  would  terminate  upon  the  death 
of  his  brothers,  naturally  anticipating  that  the  widow  and 
child  would  survive  them.  The  event  upon  which  the  estate 
of  the  beneficiaries  is  limited  is  certain,  the  death  of  the 
trustees;  the  time  is  uncertain.  A  future  interest  is  con- 
tingent, whilst  the  person  in  whom,  or  the  event  upon  which, 
it  is  limited  to  take  effect  remains  uncertain :  Civ.  Code,  sec. 
695. 

In  this  ease  neither  the  persons  to  whom  the  future  es- 
tate is  limited  nor  the  event  are  uncertain.  The  sections 
of  the  Civil  Code  controlling  this  point  may  here  be  in- 
serted. 


78  Coffey's  Probate  Decisions,  Vol.  1. 

A  present  interest  entitles  the  owner  to  the  immediate 
possession  of  the  property:  Section  689. 

A  future  interest  entitles  the  owner  to  the  possession  of 
the  property  only  at  a  future  period:  Section  690. 

A  future  interest  is  either:  1.  Vested;  or  2.  Contingent: 
Section   693. 

A  future  interest  is  vested  when  there  is  a  person  in  be- 
ing who  v/ould  have  a  right,  defeasible  or  indefeasible,  to 
the  immediate  possession  of  the  property  upon  the  ceasing 
of  the  intermediate  or  precedent  interest :  Section  694. 

Section  695  as  above  quoted. 

The  argument  against  the  widow  that  the  estate  devised 
to  the  beneficiaries  is  a  vested  remainder — one  vested  in  in- 
terest, but  postponed  in  possession,  seems  to  be  supported 
by  these  sections. 

If  this  be  so,  it  follows  that  the  surviving  wife  and  daugh- 
ter take  a  vested  remainder  in  the  specifically  described 
properties. 

Counsel  for  the  widow  contend  that  the  trust  declared  in 
clauses  3  and  4  of  the  codicil  is  void,  and  say  that  these 
paragraphs  contain  the  entire  provisions  of  the  trust.  These 
paragraphs  are  identical  with  12  and  13  of  the  original  will, 
but  paragraph  5  of  the  codicil  is  new.  Paragraph  6  ap- 
points Bartlett  and  Charles  F.  Doe  without  bonds  as  execu- 
tors and  trustees,  and  7  requests  to  employ  Daniel  Titus  as 
their  attorney.  Paragraph  8  follows  and  that  is  practically 
the  final  clause,  and  provides  that  the  executors  pay  to  his 
wife  monthly,  until  his  daughter  arrives  at  the  age  of  eigh- 
teen years,  the  sum  of  one  thousand  dollars  for  the  follow- 
ing purpose  to  wit:  Five  hundred  dollars  for  the  support 
of  his  said  wife,  and  five  hundred  dollars  for  the  support 
and  maintenance  of  his  said  daughter.  Counsel  argue  that 
the  relative  position  of  these  clauses  raises  the  strongest  kind 
of  a  presumption  against  any  connection  between  them,  and 
that  the  only  rational  construction  of  paragraph  8  is  that 
it  is  an  attempt  by  the  testator  to  prescribe  the  amount  of 
family  allowance  which  should  be  paid.  If,  however,  the 
provision  for  maintenance  is  to  be  executed,  it  must  be  out 
of  the  residuum.  There  is  no  other  way  of  carrying  out  the 
purpose  of  the  testator.  This  duty  was  imposed  upon  them 
as  executors.     It  was  an   active   duty   and  such  as  usuallv 


Estate  op  Doe.  79 

pertaius  to  the  offiee  of  trustees,  and  such  they  must  be 
deem'ed  to  be  for  the  performance  of  these  duties.  This 
seems  to  be  the  essence  of  the  authorities  on  this  point.  It 
does  not  seem  to  this  court  that  the  position  of  the  clauses 
in  the  will  shows  that  in  the  mind  of  the  testator  they  had 
no  connection.  He  certainly  designed  that  his  wife  and 
daughter  should  be  supported  out  of  the  estate,  and  re- 
course to  the  residuum  was  the  only  means  by  which  that 
object  could  be  accomplished.  That  was  his  evident  pur- 
pose, and  a  strained  construction  should  not  be  resorted  to 
to  defeat  his  design. 

It  is  contended  with  confidence  that  the  trust  herein  is  to 
distribute  and  is,  consequently,  void,  but  this  court  cannot 
accept  this  contention  for  reasons  already  advanced.  Even 
if  this  residuary  trust  were  invalid,  the  effect  would  not  be 
fatal  to  the  devise  to  the  mother  and  daughter.  It  would 
simply  shorten  the  period  of  possession;  to  translate  the 
technical  terms  of  the  law,  they  would  arrive  earlier  at 
their  enjoyment  of  the  estate;  the  intermediate  estate  be- 
ing out  of  the  way  by  reason  of  the  assumed  intestacy  as 
to  that,  the  beneficiaries  would  come  immediately  into  their 
own;  that  is  to  say,  the  daughter  would  have  her  half  at 
once  in  fee,  and  the  mother  hers  for  life  with  remainder  to 
her  child. 

It  is  said  sometimes  that  the  trust  statutes  should  be  con- 
strued rigorously,  and  that  the  law  does  not  favor  trusts  of 
this  character;  but  this  is  not  the  general  rule  of  construc- 
tion established  by  the  codes.  On  the  contrary,  the  rule  of 
the  code  is  that  its  provisions  should  be  liberally  construed. 
The  interpretation  of  the  instrument  should  be  benignant 
and  conservative,  not  destructive.  Having  ascertained  the 
intent  of  the  testator,  and  here  it  is  obvious,  we  should  not 
be  too  industrious  in  seeking  reasons  for  its  nullification. 

This  court  is  of  opinion  that  the  trusts  created  in  and  by 
this  instrument  are  valid,  and  that  the  distribution  should 
be  decreed  in  conformity  with  the  terms  of  the  will. 


The  Rule  Against  Perpetuities  is  the  subject  of  a  note  in  49  Am. 
St.  Eep.  117-138. 

And  the  Severability  of  Perpetuities  and  Forbidden  Trusts  is  the 
subject  of  a  note  in  6i  Am.  St.  Eep.  6.34-646. 


80  Coffey's  Probate  Decisions,  Vol.  1. 


Estate  of  CHARLES  McLAUGHLIN,  Deceased. 

[No.  3,061;    decided  June   16,   1885.] 

Probate  of  Will — Setting  for  Hearing,  Evidence  of. — When  it  is 
claimed  that  the  clerk  did  not  set  a  petition  for  probate  for  hear- 
ing, a  notice  in  fact  issued  by  him  and  fixing  the  day  is  the  best 
evidence  that  the  law  has  been  complied  with. 

Probate  of  Will — Setting  for  Hearing. — Any  Omission  in  matters 
of  form  in  fixing  the  date  for  hearing  a  petition  to  probate  a  will 
may  be  disregarded  by  the  court  or  ordered  supplied  when  the  proper 
fact  is  made  satisfactorily  to  appear. 

Probate  of  Will. — The  Publication  of  the  Notice  fixing  the  day  for 
hearing  the  probate  of  a  will,  when  made  in  a  weekly  paper,  must 
appear  on  at  least  three  different  days  of  publication,  but  not  neces- 
sarily in  three  consecutive  weekly  issues. 

Probate  of  Will. — A  Creditor  cannot  Petition  for  a  Revocation 
of  the  probate  of  a  will. 

The  Probate  of  a  Will  and  the  Appointment  of  an  Executor  are 
distinct  emanations  from  the  will  of  the  court,  usually,  though  not 
necessarily  embodied  in  one  order,  but  determined  upon  entirely  dif- 
ferent sets  of  facts. 

Application  by  creditor  to  revoke  the  probate  of  a  will. 
A.  B.   Hotchkiss,  for  petitioning  creditors. 
L.  D.  McKisick,  for  executrix. 

T.  H.  REARDEN,  J.  (in  vacation  sittings  of  Department 
9,  Probate). — This  is  an  application,  by  petition,  by  Emile 
Erlanger  and  others,  setting  forth  that  they  are  residents 
of  the  city  of  Paris,  and  are  creditors  of  the  decedent,  who 
died  in  1883,  leaving  a  will,  and  being  at  his  death  a  resi- 
dent of  this  state. 

That  decedent's  will  is  on  file  in  this  court;  that  it  ap- 
pears by  the  records  that  proceedings  were  had  for  the  pro- 
bate of  the  will;  that  witnesses  touching  its  execution  were 
examined,  and  their  testimony  reduced  to  writing,  on  June 
16,  1884;  and  that  the  court  ordered  letters  testamentary 
to  be  issued  to  Kate  McLaughlin,  the  executrix  named  in 
the  will. 

That  the  will  was  filed  January  9,  1884,  together  with  a 
petition  for  letters  testamentary. 


Estate  of  McLaughlin.  81 

That  it  appears  from  an  inspection  of  the  record  that 
the  clerk  did  not  set  the  petition  for  hearing;  nor  did  the 
court  set  it  for  hearing;  that  proper  notice  of  said  hear- 
ing has  not  been  given;  that  no  proof  was  made  at  the 
hearing  that  notice  was  given ;  that  a  notice  was  published 
in  the  "Daily  Alta  California,"  a  daily  newspaper,  but 
such  notice  was  not  published  as  required  by  law;  that  no 
order  of  any  court  or  judge  was  made  directing  the  man- 
ner, or  number  of  times,  of  said  publication ;  that  the  only 
proof  of  publication  was  an  affidavit  filed  February  5,  1884, 
which  affidavit  is  insufficient  to  give  the  court  jurisdiction, 
as  it  does  not  show  the  year  of  publication,  or  that  said 
notice  was  published  as  often  during  the  period  of  publica- 
tion as  the  paper  was  regularly  issued. 

Petitioners  therefore  pray  that  the  probate  be  revoked, 
and  for  such  other  order  as  may  be  proper. 

This  petition  is  demurred  to  by  the  executrix.  On  the 
hearing  upon  demurrer,  the  petitioners  claimed  that  the 
clerk  should  have  made  an  order  fixing  the  day  of  hearing, 
and  that  no  such  order  was  in  existence.  It  appeared,  how- 
ever, as  a  fact  before  the  court,  that  the  clerk  had  entered 
the  day  of  hearing  in  a  calendar  kept  by  him.  This  entry 
was  not  transferred  to  the  register,  but  there  would  seem  to 
be  no  reason  why,  if  such  entry  had  been  made  in  rough 
minutes,  it  could  not  be  put  into  the  more  formal  register, 
either  by  the  clerk  himself  or-  by  the  court,  when  attention 
had  been  directed  thereto.  But  the  best  evidence  in  the 
matter  of  the  fixing  of  the  day  for  probate  is  the  notice  is- 
sued by  the  clerk,  which  is  complete  in  that  regard.  Any 
omission  in  matters  of  form  should  either  be  disregarded  by 
the  court,  or  the  omission  should,  by  direction,  be  supplied, 
when  the  proper  fact  is  made  satisfactorily  to  appear.  Sec- 
tion 1704,  Code  of  Civil  Procedure,  provides  only  that  or- 
ders of  the  court  or  judge  must  be  entered  at  length  on  the 
minute-book  of  the  court. 

The  next  objection  to  the  proceedings  for  probate  lies  in 
the  number  of  times  the  notice  was  published.  The  affi- 
davit of  proof  of  piiblications  shows  that  a  notice  fixing 
Tuesday,  February  5,  1884,  at  10  o'clock  A.  M.,  which  no- 
tice is  dated  January  9,  1884  (the  date  of  filing  petition  for 

Prob.  Dec.  Vol.  1—6 


82  Coffey  ^s  Probate  Decisions,  Vol.  1. 

probate),  was  published  in  the  "Daily  Alta  California" 
five  times,  to-wit:  January  10,  15,  24,  and  31,  and  Febru- 
ary 5,  1884,  which  last  day  was  the  day  set  for  hearing. 
The  notice  was  directed  by  the  clerk  to  be  published  Thurs- 
days and  Tuesdays  till  date  (of  hearing).  It  is  probable 
that  the  notice  was  published  oftener  as  there  were  more 
Tuesdays  and  Thursdays  than  are  indicated. 

The  provisions  of  the  code  in  that  behalf  are: 
"Notice  of  the  hearing  shall  be   given  by  the   clerk  by 
publishing  the  same  in  a  newspaper  of  the  county;  if  there 
is  none,  then  by  three  written  or  printed  notices  posted  at 
three  of  the  most  public  places  in  the  county. 

"If  the  notice  is  published  in  a  weekly  newspaper,  it  must 
appear  therein  on  at  least  three  different  days  of  publica- 
tion; and  if  in  a  newspaper  published  oftener  than  once  a 
week,  it  shall  be  so  published  that  there  must  be  at  least  ten 
days  from  the  first  to  the  last  day  of  publication,  both  the 
first  and  the  last  day  being  included":  Code  Civ.  Proc. 
1303. 

The  petitioners  claim  that  section  1705  should  be  made 
to  supplement  section  1303,  in  that  it  provides  that  "when 
any  publication  is  ordered,  such  publication  must  be  made 
daily,  or  otherwise  as  often  during  the  prescribed  period 
as  the  paper  is  regularly  issued,  unless  otherwise  provided 
in  this  title."  The  court  or  judge  thereof  may,  however, 
order  a  less  number  of  publications  during  the  period. 

Counsel  for  executrix  claim  that  it  is  "otherwise  pro- 
vided" in  section  1303. 

It  will  be  seen  that  even  in  the  case  of  a  weekly  news- 
paper, section  1303  does  not  provide  that  the  publications 
shall  be  made  in  three  consecutive  weekly  issues,  but  merely 
"on  at  least  three  different  days  of  publication." 

Also,  if  the  court  or  .judge  can  order  a  less  number  of 
publications,  "unless  otherwise  provided"  by  section  1303, 
the  order  might  be  for  less  than  three  publications  in  a 
weekly  paper,  and  only  one  in  a  daily  paper  (should  the 
judge  have  discretion  in  the  premises,  which  section  1303, 
germane  to  the  notice  of  probate,  would  clearly  negative)  : 
McCrea  v.  Haraszthy,  51  Cal.  149,  does  not  aid  us.     In  that 


Estate  of  IMcLaughlin.  83 

case  the  court  held  that  the  statute  supplemented  the  judge's 
order,  when  the  latter  was  silent ;  and  that  if  the  notice  was 
published  for  the  statutory  time,  it  was  good.  Here  the 
question  is,  whether  the  publication  is  for  the  statutory 
number  of  times. 

At  the  same  time,  the  general  impression  has  prevailed 
that  a  notice  of  probate  in  a  daily  paper  should  be  pub- 
lished daih^  as  often  as  the  paper  is  issued.  I  would  be 
loath  to  run  counter  to  so  general  an  opinion  in  any  event ; 
and,  therefore,  decline  at  this  point,  in  the  absence  of  the 
usual  judge  of  this  department,  to  pass  absolutely  upon  the 
sufficiency  of  the  notice.  If  such  notice  is  bad,  it  behooves 
the  learned  counsel  for  the  executrix  to  discover  and  remedy 
the  error  at  the  earliest  possible  moment,  and  to  vacate  the 
proceedings  in  the  matter  of  the  estate,  and  commence  de 
novo  from  the  notice  by  the  clerk. 

But  the  petition  of  these  creditors  is,  as  I  regard  it, 
fatally  defective  in  its  point  of  attack.  It  seeks,  as  its  declared 
object,  to  avoid  the  will  as  probated;  it  does  not  strike  at 
the  only  point  where  a  creditor  can  be  interested  in  an  es- 
tate— the  executorship  or  the  competency  of  the  executrix 
(counsel  for  petitioners  admitted,  at  the  hearing,  that  his 
clients  had  no  quarrel  with  her,  or  her  appointment,  but 
only  denied  the  regularity  of  the  probate).  A  creditor  can- 
not be  affected  injuriously  by  any  testamentary  dispositions 
of  his  debtor.  The  debtor  cannot  posthumously  hinder,  de- 
lay or  defraud  his  creditor.  An  executor,  once  inducted 
into  his  trust,  must  quoad  the  creditors,  proceed  on  pre- 
cisely the  same  lines  as  an  administrator.  He  must  pub- 
lish notice  to  creditors,  file  exhibits,  render  accounts,  allow 
or  reject  claims,  pay  all  dues  to  strangers  to  the  estate,  as 
rigidly  as  if  he  were  an  officer  of  the  court,  appointed  in- 
dependently of  the  decedent's  wish.  If  he  be  distrusted  by 
the  creditor,  application  will  be  entertained  to  put  him  un- 
der bonds ;  if  he  be  incompetent,  the  creditor  may  demand 
his  removal.  The  creditor  may  come  in  when  the  executor 
is  to  be  qualified,  and  object.  But  the  creditor  has  nothing 
to  do  with  the  will.  The  will  attaches  only  to  the  dece- 
dent's net  estate,  after  all  debts  and  expenses  of  administra- 
tion have  been  liquidated:  See  Estate  of  Hinckley,  58  Cal. 


84  Coffey's  Probate  Decisions,  Vol.  1. 

516.  As  to  the  will,  the  creditor  is  a  stranger.  It  is  no 
affair  of  his :  See,,  also,  Civ.  Code,  sec.  1270. 

The  probate  of  a  will  and  the  appointment  of  an  execu- 
tor are  distinct  emanations  from  the  will  of  the  court — ■ 
usually,  but  not  necessarily,  embodied  in  the  one  order,  but 
determined  upon  entirely  different  sets  of  facts. 

Can  the  present  petition  be  used  to  initiate  an  attack 
upon  the  executrix,  so  as  to  nullify  any  notice  to  creditors 
given  by  her  whereby  these  particular  creditors  are  barred 
of  their  claims?  The  petition  does  not  disclose  the  fact  or 
motive  of  the  creditors,  but  it  was  hinted  at  upon  the  hear- 
ing. 

If  the  present  proceedings  are  nugatory,  then  the  only 
way  whereby  the  court  can  acquire  properly  jurisdiction 
is  by  a  petition  for  probate,  or  some  application  of  that 
kind,  wherein  sufficient  facts  are  set  forth  to  put  the  ma- 
chinery of  the  court — its  ordinary  procedure — in  motion. 

The  present  petition  is  insufficient.  By  itself,  it  would 
not  warrant  the  court's  proceeding  anew  to  reappoint  the 
present  executrix,  or  an  administrator  in  her  stead.  De- 
murrer is  therefore  sustained,  with  leave  to  petitioners  to 
amend. 


Where  a  Notice  of  the  Hearing  of  a  Petition  for  the  Probate  of  a 

will  is  published  only  twice  in  a  weekly  newspaper,  when  the  stat- 
ute requires  at  least  three  times,  an  order  admitting  the  will  to 
probate  and  appointing  an  administrator  with  the  will  annexed  is 
void:  Estate  of  Charleblis,  6  Mont.  373,  12  Pac.  775.  But  a  notice 
is  sufficiently  proved  to  have  been  published  in  a  daily  paper  for 
the  requisite  period  by  an  affidavit  showing  that  it  was  published 
in  a  paper  purporting  by  its  name  to  be  a  daily  paper,  for  eleven 
days:  Crew  v.  Pratt,  119  Cal.  139,  51  Pac.  38.  And  if  a  decree  re- 
cites due  service  of  notice  by  publication  or  posting,  the  recital  is 
sufficient  to  prove  the  same  as  against  a  collateral  attack:  Crew  v. 
Pratt,  119  Cal.  139,  51  Pac.  38. 


Estate  of  Solomon.  85 


Estate  op  JACOB  SOLOMON,  Deceased. 

[No.  3,881;    decided  July  22,  1886.] 

Will  Contest — Burden  of  Proof. — One  who  contests  the  probate  of 
a  will  has  the  burden  of  proof  to  establish  the  ground  of  contest. 

Insane  Delusion — Wrong  Conclusions  as  Evidence. — If  any  fact 
exists  as  a  foundation  for  a  testator's  belief  that  a  child  borne  by 
his  wife  is  not  his,  he  cannot  be  said  to  be  the  victim  of  an  insane 
delusion,  however  mistaken  he  may  be  in  his  conclusion. 

Insane  Delusion. — A  Person  may  Act  on  Weak  Testimony,  yet  be 

under  no  delusion. 

This  was  a  contest  filed  to  an  application  for  the  pro- 
bate of  a  document,  presented  as  the  last  will  of  Jacob  Sol- 
omon, deceased.  The  will  and  a  petition  for  the  admission 
to  probate  were  filed  on  January  6,  1885,  by  Lazarus  Solo- 
mon, named  in  the  instrument  as  executor.  On  the  eleventh 
day  of  February,  1885,  there  was  filed  the  written  contest 
(as  amended)  of  Jennie  Asch,  the  person  referred  to  by 
testator  in  the  seventh  clause  of  his  will,  hereinafter  given. 

Six  grounds  of  contest  were  specified  by  contestant,  but 
the  only  ground  covered  by  the  opinion  of  the  court  be- 
low is  the  "second"  one,  stated  in  the  contest  as  follows: 
"That  at  the  time  of  signing  of  the  said  alleged  will,  the 
said  Jacob  Solomon  was  laboring  under  and  controlled  by 
the  insane  delusion  that  this  contestant  was  not  the  child 
of  said  deceased." 

This  ground  of  contest  is  aimed  at  the  seventh  clause  of 
the  will,  which  is  in  the  following  language :  "  I  hereby 
declare  that,  prior  to  my  coming  to  California,  I  was  mar- 
ried to  a  woman  named  Hannah — whose  other  name  I  have 
forgotten ;  she  was  divorced  from  me  by  a  decree  of  the 
Twelfth  District  Court  of  the  State  of  California,  on  the 
11th  day  of  August,  1860 ;  during  our  marriage  a  child  was 
born  of  her;  this  child  was  not  begotten  by  me,  and  was 
not  my  child ;  she  is  now  living  in  this  city ;  her  present 
name  is,  I  believe,  Mrs.  Jennie  Von  Stratton;  I  do  not  make 
in  this  my  will,  and  do  not  intend  to  make,  any  provisions 
for  said  child." 


86  Coffey's  Probate  Decisions,  Vol.  1. 

The  important  fact  in  the  case  turned  out  to  be  the  date 
of  the  marriage  of  the  testator  with  the  contestant's  mother, 
as  upon  this  hinged  the  testator's  belief  with  respect  to  con- 
testant's birth.  The  exact  date  of  the  marriage  could  not 
be  shown,  and  it  w^as  capable  of  being  fixed  only  by  refer- 
ence to  certain  events.  The  court  found  that  the  marriage 
took  place  at  the  time  of  the  Jewish  feast  of  "Hanucah," 
which  was  shown  to  have  fallen  during  the  Christian  year 
1854,  in  the  tenth  month  of  the  Jewish  calendar — the  last 
half  of  the  month  of  December,  1854,  and  the  first  half  of 
the  month  of  January,  1855.  The  birth  of  the  child  took 
place  on  the  following  first  day  of  July,  1855,  about  six  and 
one-half  months  after  the  marriage.  It  also  appeared  that 
about  two  months  previous  to  the  birth  of  contestant,  the 
testator  being  away  from  home  on  business,  had  sent  money 
to  his  wife,  but  that  when  he  was  informed  afterwards  of 
the  date  of  the  child's  birth,  he  declared  that  the  child  was 
not  his;  that  subsequently  he  came  to  California,  his  wife 
afterward  following  and  obtaining  here  a  divorce  against 
him  by  default,  the  complaint  for  divorce  fixing  the  date  of 

marriage  as  " day  of  August,  1854,"  and  alleging  the 

birth  and  existence  of  the  child. 

Geo.  Flournoy  and  J.  B.  Mhoon,  for  contestant. 

K.  C.  Harrison   (Jarboe  &  Harrison),  for  proponent. 

COFFEY,  J.  The  burden  of  proof  is  on  contestant  to 
establish  ground  of  contest.  After  a  re-examination  of  the 
evidence,  I  am  of  the  opinion  that  the  contestant's  case  is 
not  supported  by  the  preponderance  of  proof.  Whether  the 
statement  of  the  testator  was  well  or  ill  based,  there  was  in 
the  order  of  nature,  according  to  the  testimony  in  this  con- 
test, some  reason  for  his  belief.  He  knew  when  he  was  mar- 
ried; he  knew  when  his  daughter  was  born;  hence  he  could 
have  inferred  the  fact  he  alleges  in  the  paper  propounded. 
However  much  he  might  have  been  mistaken  in  the  conclu- 
sion at  which  he  arrived,  if  any  fact  existed  as  a  foundation 
therefor,  he  was  not  the  victim  of  insane  delusion.  A  per- 
son may  act  upon  weak  testimony,  yet  be  under  no  delusion 
(]\Tyr.  15),  and  there  does  not  appear  to  me  to  be  sufficient 
evidence  in  support  of  the  statement  that  Jacob  and  Han- 


Estate  op  Solomon.  87 

nail  were  married  in  "the  latter  part  of  November,"  1854. 
and  even  then  it  would  be  a  very  close  call  for  the  child ;  the 
probable  time,  I  am  constrained  to  conclude,  was  near  the 
feast  of  "Hanucah,"  which  began  about  the  middle  of  De- 
cember, 1854,  and  lasted  until  January  1,  1855;  this  was 
in  or  about  the  month  of  "Tebet,"  the  tenth  month  of 
the  Jewish  calendar,  corresponding  to  the  English  calen- 
dar months  of  December-January — two  weeks  of  each.  If 
it  be  true,  as  I  take  it  from  the  testimony,  that  Jacob  and 
Hannah  were  united  in  marriage  at  that  time,  in  December, 
1854,  the  birth  of  a  child  July  1,  1855,  was  sufficient  pre- 
mise for  the  conclusion  announced  in  the  seventh  clause  of 
the  will — the  subject  matter  of  this  contest. 

Let  an  order  be  drawn  admitting  the  will  to  probate. 


A  Delusion  Which  will  Destroy  Testamentary  Capacity  must  spring 
up  spontaneously  in  the  mind,  without  extrinsic  evidence  of  any 
kind  to  support  it.  If  it  has  any  foundation  in  fact,  if  it  has  any 
evidence,  however  slight,  as  its  basis,  it  is  not  an  insane  delusion. 
One  cannot  be  said  to  be  under  such  a  delusion  if  his  condition  of 
mind  results  from  a  belief  or  inference,  however  irrational  or  un- 
founded, drawn  from  the  facts  which  are  shown  to  exist:  Estate  of 
Scott,  128  Cal.  57,  60  Pac.  527;  In  re  Cline's  Will,  24  Or.  175,  41 
Am.  St.  Kep.  851,  33  Pac.  542;  Skinner  v.  Lewis,  40  Or.  571,  67  Pac. 
951. 

False  logic  or  faulty  ratiocination  is  far  from  the  manifestation 
of  insanity,  so  long  as  the  process  is  formally  correct,  not  inco- 
herent or  inconsequential.  Hence  if  a  wife  has  evidence,  however 
slight,  on  which  to  base  a  suspicion  of  her  husband's  unfaithfulness, 
and  has  no  settled  conviction  on  the  subject,  her  suspicion  does  not 
amount  to  an  insane  delusion:  Estate  of  Scott,  post,  p.  271.  But 
where  a  man  wills  his  entire  estate  to  his  children  of  a  former  mar- 
riage because  he  believes  that  his  present  wife  is  unfaithful  and 
his  children  by  her  illegitimate,  which  belief  has  no  evidence  to 
support  it,  the  will  may  be  avoided  as  the  product  of  an  insane 
delusion:  Johnson  v.  Johnson,  105  Md.  81,  121  Am.  St.  Eep.  570,  65 
Atl.  918. 


88  Coffey's  Probate  Decisions,  Vol.  1. 


Estate  of  JOHN  LANE,  Deceased. 

[No.  3,490;    decided  August  7,  1884.] 
Letters  of  Administration. — The  Order  in  Which  Letters  of  admin- 
istration are  granted    is  a  matter  of  statutory  regulation,  and  to  the 
statute  the  court  must  resort  for  decision. 

Succession — Vesting  of  Estate  in  Heirs. — Heirs  succeed  to  the 
property  of  their  intestate  immediately  upon  his  death;  then  their 
interest  becomes  vested,  subject  only  to  the  lien  of  the  administra- 
tor for  the  payment  of  the  debts  of  the  decedent  and  the  expenses 
of  administration. 

Succession. — The  Next  of  Kin  Entitled  to  Share  in  the  Distribution 

of  the  estate  of  an  intestate  are  such  only  as  are  next  of  kin  at  the 
time  of  his  death. 

Letters  of  Administration — Next  of  Kin. — Where  a  man  dies  intes- 
tate, and  subsequently  his  widow  dies  before  letters  are  taken  out 
on  his  estate,  her  niece  is  not  entitled  to  administer  his  estate  as 
next  of  kin,  for  she  was  not  such  when  he  died. 

Charles  F.  Hanlon,  for  Miss  Margaret  Murray. 

Geo.  D.  Shadbiirne  and  Mr.  W.  A.  Plunkett,  associate, 
for  absent  heirs. 

T.  E.  K.  Cormac,  for  Public  Administrator    Roach. 

J.  ]\I.  Burnett,  amicus  curiae. 

COFFEY,  jr.  John  Lane  died  intestate,  leaving  solely 
surviving  him  his  widow  Ellen,  who,  shortly  after  his  death 
and  before  letters  were  taken  out  on  his  estate,  died,  leaving 
no  issue  nor  parents.  Now  comes  Margaret  Murray,  spin- 
ster, niece  of  Ellen  Lane,  and  claiming  to  be  her  heir  at 
law,  and  files  a  petition  for  letters  of  administration  on  the 
estate  of  the  first  aforesaid  John  Lane,  which  petition  is- 
contested  by  the  public  administrator,  who  claims  that  he 
is  entitled,  under  the  statute  (Code  Civ.  Proc,  sec.  1365). 
The  question  before  the  court  is :  To  which  of  these  antago- 
nistic applicants  should  letters  issue? 

The  order  in  which  letters  of  administration  are  granted 
is  a  matter  of  statutory  regulation,  and  to  the  statute  we 
must  resort  for  the  rule  of  decision.     This  principle  should 


Estate  of  Lane.  89' 

be  borne  in  mind  when  examining  the  authorities  cited  from 
other  states,  for  unless  they  interpret  statutes  similar  to 
our  own  they  carry  no  weight.  Section  1365  of  the  Cali- 
fornia Code  of  Civil  Procedure  provides  that  relatives  of 
the  deceased  shall  be  entitled  to  administer  only  when  they 
are  entitled  to  succeed  to  his  personal  estate,  or  some  por- 
tion thereof;  and  the  section  then  fixes  the  order  in  which 
letters  shall  be  granted,  the  seventh  subdivision  being  "the 
next  of  kin  entitled  to  share  in  the  distribution  of  the  es- 
tate." It  has  been  held  from  the  earliest  history  of  our 
jurisprudence  that  the  heirs  succeed  to  the  property  of  the 
intestate  immediately  upon  his  death;  then  their  interest 
becomes  vested,  subject  only  to  the  lien  of  the  administra- 
tor for  the  payment  of  the  debts  of  the  intestate  and  charges 
and  expenses  of  administration.  It  follows  from  this  in- 
dependent of  the  statute,  that  "the  next  of  kin  entitled  to 
share  in  the  distribution  of  the  estate"  must  be  the  persons 
who  are  "next  of  kin"  at  the  death  of  the  intestate.  Miss 
Margaret  Murray  was  not  next  of  kin  to  John  Lane  when  he 
died :  how  can  she  become  so  after  his  death  ?  The  first  part 
of  section  1365,  Code  of  Civil  Procedure,  provides  that  the 
relatives  of  the  deceased  (not  the  relatives  of  a  deceased 
heir  of  the  deceased)  shall  be  entitled  to  administer  only 
when  they  are  entitled  to  succeed  to  his  personal  estate. 
Miss  Murray  was  not  a  relative  of  the  deceased  John  Lane; 
she  was  not  an  heir  at  law;  if  her  aunt  Ellen  had  died  be- 
fore John  Lane,  Margaret  would  come  in  for  nothing.  Miss 
]\Iurray  will  ultimately  obtain  a  portion  of  the  estate,  but 
only  as  an  heir  at  law  or  "next  of  kin"  of  her  aunt  Ellen, 
if  it  be  established  in  that  estate  that  she  is  so  related.  Her 
interest  comes  and  is  worked  out  through  that  estate  and 
in  no  other  way.  There  is  no  descent  cast  by  right  of  rep- 
resentation in  this  case;  the  law  provides  for  such  only 
where  the  common  relative  dies  before  the  intestate.  It 
would  seem,  thep,  that  as  Miss  Margaret  IMurray  was  not  a 
relative  of  the  decedent,  John  Lane,  and  can  claim  only 
through  the  estate  of  her  deceased  aunt,  Ellen  Lane,  she 
does  not  come  within  the  statute,  and  hence  her  application 
must  be  denied. 


90  Coffey's  Probate  Decisions,  Vol.  1. 

In  Estate  of  Wakefield,  136  Cal.  110,  68  Pac.  499,  a  mother  and 
daughter  perished  in  a  wreck,  the  daughter  dying  first.  The  daugh- 
ter died  intestate,  leaving  her  mother  sole  heir.  Her  mother  left  a 
last  will  bequeathing  her  property  to  her  two  sons.  It  was  held 
that  the  sons  were  not  entitled  to  administration  on  the  estate  of 
the  daughter,  under  section  1365,  California  Code  of  Civil  Procedure, 
as  they  became  possessed  of  her  estate,  not  as  her  heirs,  but  by  rea- 
son of  being  devisees  under  their  mother's  will. 


Estate  of  CHARLES   SEALY,   Deceased. 

[No.  3,186;    decided  July  5,   1884.] 

Jurisdiction — Residence  of  Deceased. — The  Issuance  of  Special 
Letters  of  administration  to  the  public  administrator  in  one  county 
is  not  a  final  determination  of  his  right  to  general  letters  of  admin- 
istration   as    against    the    public    administrator   of   another    county. 

Jurisdiction — Residence  of  Deceased. — The  Issuance  of  Special 
Letters  of  administration  leaves  the  jurisdictional  facts  still  to  be 
ascertained    prior    to    the    issuance    of    general    letters. 

Jurisdiction — Residence  of  Deceased — Conclusiveness  of  Deter- 
mination.— Where  the  public  administrators  of  two  counties  each  file 
an  application  for  letters  of  administration,  there  being  a  doubt  as 
to  which  county  the  decedent  was  a  resident  of,  and  one  applicant 
contests  the  application  of  the  other,  the  adjudication  of  the  court 
that  it  has  jurisdiction  is  a  bar  to  the  contestant's  own  application 
in  the  other  county. 

John  A.  Wright,  for  San  Francisco  public  administrator. 

E.  C.  Robinson  and  W.  R.  Davis,  for  Alameda  public  ad- 
ministrator. 

J.  M.  Seawell,  for  Robert  Sealy,  brother. 

AY.  A.  Plunkett,  for  absent  heirs. 

Barrows  &  Dare,  for  ''somebody  in  shadow," 

COFFEY,  J.  Charles  Sealy  died  in  San  Francisco  on 
February  22,  1880,  he  having  moved  over  to  Oakland,  Ala- 
meda county,  about  four  months  before  his  death,  intending 
to  take  up  his  residence  there,  in  order  to  avoid  jury  duty 


Estate  of  Sealy.  91 

in  San  Francisco,  declaring  that  he  would  never  live  in  San 
Francisco  again. 

On  February  23,  1884,  Philip  A.  Roach,  public  adminis- 
trator, filed  in  the  superior  court  of  the  city  and  county  of 
San  Francisco  his  petition  for  special  letters  of  administration 
upon  the  estate  of  Charles  Sealy,  and  he  was  appointed 
special  administrator  on  February  25th.  At  about  the  same 
time,  Louis  Gottshall,  public  administrator  of  Alameda  county, 
was  ordered  by  the  superior  court  of  that  county  to  take 
charge  of  the  estate  therein,  Charles  Sealy  having  resided  in 
Alameda  county.  At  the  same  time  Mr.  Gottshall  filed  his 
petition  in  the  Alameda  superior  court  for  general  letters  of 
administration.  Subseciuently  he  filed  a  petition  in  the 
superior  court  of  San  Francisco  to  set  aside  and  revoke  the 
special  letters  of  Mr.  Roach,  which  petition  was  denied.  On 
February  28th  Mr.  Roach  filed  in  Alameda  county  his  written 
objections  to  the  application  of  Mr.  Gottshall  for  letters  of 
administration,  and  upon  the  issues  of  fact  raised  by  the 
objection  the  case  was  heard  and  tried  before  that  court. 
On  i\Iarch  31st  the  Alameda  superior  court.  Noble  Hamilton, 
judge,  rendered  a  decision  in  favor  of  public  administrator 
Gottshall,  but,  disregarding  this  decision,  public  administrator 
Roach  insisted  on  the  hearing  of  his  petition  in  the  San 
Francisco  court  for  general  letters.  When  the  matter  came 
up  for  hearing  the  attorney  for  the  Alameda  administrator 
filed  objections  to  the  application  of  the  San  Francisco 
administrator,  and  pleaded  in  bar,  as  a  final  adjudication 
upon  the  question  of  residence,  the  decision  of  the  Alameda 
court.  The  points  of  the  argument  were,  whether  the  Ala- 
meda adjudication  could  be  pleaded  in  bar,  and,  if  so  pleaded, 
what  would  be  its  effect. 

Messrs.  Robinson  and  Davis,  for  Alameda  administrator, 
filed  herein  a  brief  of  forty-three  pages;  Mr.  Seawell,  for 
Robert  Sealy,  one  of  twenty  pages;  and  Messrs.  Wright  and 
Cormac,  for  San  Francisco  administrator,  one  of  twelve 
pages.  If  attorneys  expect  their  learned  and  long  essays  and 
reviews  to  be  well  considered,  their  citations  verified,  and 
their  conclusions  cogitated  and  considered  by  tlie  court,  thev 


92  Coffey's  Probate  Decisions,  Vol.  1. 

must  be  content  to  wait  awhile  for  a  decision.  Hence  the 
delay  in  deciding  this  controversy. 

The  issue  of  special  letters  to  the  public  administrator  of 
San  Francisco  was  not  a  final  determination  of  the  rights  of 
the  parties  herein.  His  function  is  "to  collect  and  take 
charge  of  the  estate  of  the  decedent,"  and  to  preserve  the 
same,  pending  proceedings  for  the  appointment  of  a  general 
administrator :  Code  Civ.  Proc,  sec.  1411. 

The  jurisdictional  facts  were  still  to  be  ascertained,  prior 
to  the  issue  of  general  letters.  The  first  inquiry  upon  such 
an  application  was  had  in  Alameda  county.  To  the  court  in 
that  county  went  the  San  Francisco  public  administrator, 
and,  opposing  the  application  of  the  Alameda  administrator, 
controverted  the  latter 's  right  to  letters,  and  in  that  contro- 
versy was  worsted.  He  must  abide  the  event  of  a  contro- 
versy to  which  he  was  a  voluntary  party.  There  was  an 
issue  to  which  the  parties  here  were  parties;  they  had  their 
day  in  court ;  the  facts  were  investigated  and  found  in  favor 
of  that  jurisdiction ;  and  the  judgment  is  here  regularly  and 
properly  pleadable,  and  pleaded  in  bar  of  this  court's  action. 
Let  an  order  be  drawn  accordingly. 


Under  Some  Circumstances,  Two  or  More  Courts  may  have  Juris- 
diction to  entertain  an  application  for  letters  testamentary  or  of 
administration.  When  such  is  the  case,  and  one  of  the  courts  re- 
ceives an  application  and  assumes  jurisdiction,  that  jurisdiction  is 
exclusive,  for  there  cannot  be  two  valid  administrations  of  an  es- 
tate at  the  same  time.  The  court  first  applied  to  for  letters  has  ex- 
clusive authority  to  determine  whether  or  not  it  has  jurisdiction, 
subject  to  review  upon  appeal,  and  the  other  courts  must  abide  by 
its  determination  of  the  question.  The  statutes  of  many  states  pro- 
vide that  in  certain  cases  the  courts  in  which  application  is  first 
made  has  exclusive  jurisdiction  of  the  settlement  of  the  estate, 
and  under  this  rule,  the  first  filing  of  a  petition  for  letters  con- 
stitutes the  "first  application"  for  them.  The  appointment  of  an 
administrator  in  one  county  is  without  validity  while  a  prior  ap- 
pointment in  another  county  is  in  effect.  And  a  decree  escheating 
property  to  the  state  is  ineffectual  when  the  court  of  another  county 
has  already  granted  letters  of  administration:  1  Eoss  on  Probate  Law 
and  Practice,  226,  citing  Dungan  v.  Superior  Court,  149  Cal.  98,  84 
Pac.  767;  Estate  of  Davis,  149  Gal.  485,  87  Pac.  17;  Estate  of  Griffith, 
84  Gal.  107,  23  Pac.  528,  24  Pac.  381;  Oh  Chow -v.  Brockway,  21  Or. 
440,  28  Pac.  384;  Territory  v.  Klee,  1  Wash.  183,  23  Pac.  417. 


Estate  of  Pickett.  93 


Estate  op  MICHAEL  PICKETT,  Deceased. 

[No.  4,371;   decided  November  7,   1885.] 

Words  and  Phrases.— The  Terms  "Surviving  Wife"  and  "Widow" 
are   synonymous. 

Appointment  of  Administratrix. — When  a  Widow  Marries,  she  ceases 
to  be  the  widow  of  her  first  husband;  and  then  being  a  married 
woman,  she  loses  her  right  to  administer  his  estate,  or  to  nominate 
an  administrator. 

This  was  a  contest  between  two  applicants  for  letters  of 
administration,  one  being  the  nominee  of  the  decedent's 
widow,  who  had  remarried,  and  the  other  the  public  admin- 
istrator of  San  Francisco,  Philip  A.  Roach. 

Wright  &  Cormac,  for  Public  Administrator  Roach. 

Burnett  &  Bartlett,  for  O'Connell,  nominee  of  former 
widow. 

Geo.  D.  Shadburne,  for  absent  heirs. 

COFFEY,  J.  When  Mrs.  Pickett  married  Minihan,  she 
ceased  to  the  widow  of  the  decedent  and  lost  her  right  to 
administer.  Being  a  Inarried  woman  she  had  no  right  her- 
self, and  had  nothing  to  confer  upon  her  nominee,  0  'Connell. 
The  terms  "surviving  wife"  and  "widow"  are  synonymous, 
and  are  so  treated  in  the  statute  and  in  the  decisions,  the 
supreme  court  commonly  employing  the  term  "widow"  in 
the  same  signification  as  ' '  surviving  wife. ' '  I  have  carefully 
conned  and  considered  the  brief  of  counsel  for  Mrs.  Minihan 's 
nominee,  and  have  examined  all  the  authorities  accessible 
with  a  view  to  discerning  the  distinction  drawn  by  them  be- 
tween the  principles  involved  in  the  authorities  cited  by 
counsel  for  absent  heirs,  and  the  point  raised  here;  but  my 
conclusion  is  that  the  sense  of  the  statute,  and  the  result  of 
the  decisions  of  the  supreme  court,  is  to  exclude  the  widow 
upon  her  second  marriage  from  the  right  of  nomination. 
The  Estate  of  Cotter  does,  as  counsel  contend,  settle  the 
point  that  a  nonresident  widow  is  entitled  to  nominate 
although    disqualified    from    serving,    because,    as   the    court 


94  Coffey's  Probate  Decisions,  Vol.  1. 

said,  the  right  to  nominate  "does  not  depend  upon  the 
matter  of  residence,"  but  it  does  depend  upon  the  status 
of  the  nominator.  The  court  there  refers  to  "the  widow  of 
the  deceased,"  "the  right  of  the  widow  to  nominate"  (54 
Cal.  217),  thus  treating  "surviving  wife"  and  "widow"  as 
convertible  terms.  Mrs.  Minihan  is  a  married  woman,  and, 
as  such,  could  neither  administer  nor  nominate ;  being  a 
married  woman,  how  can  she  be  accounted  the  "widow" 
of  her  predeceased  husband? 

I  have  searched  the  dictionaries  and  the  decisions  in  vain 
for  relief  in  this  extremity.  In  the  circumstances,  her  nom- 
ination is  "of  no  legal  consequence  whatever":  Estate  of 
Morgan,  53  Cal.  243. 

Counsel  for  the  nominee  express  their  assurance  that 
before  the  court  will  refuse  this  claim  of  right  in  Mrs.  IMini-' 
han,  it  will  be  fully  statisfied  that  its  decision  expresses  the 
intention  of  the  legislature,  and  that  the  court  will  resolve 
its  doubts,  if  any  there  be,  in  favor  of  a  class  whose  rights 
it  is  especially  organized  to  defend  and  protect. 

In  the  Estate  of  Flaherty,  decided  February  11,  1884. 
this  court,  in  the  conclusion  it  reached,  justified  the  assurance 
here  avouched  by  counsel.  That  case  was  elaborately  argued 
by  John  A.  Wright,  Esq.,  for  the  public  administrator,  and 
]\Iessrs.  Jarrett  and  C.  W.  Bryant  for  one  claiming  to  be  a 
nonresident  widow,  although  in  marital  relations  with  an- 
other man,  to  whom  she  was  ceremonially  united  during  the 
lifetime  of  Flaherty  (being  under  the  impression  that  he 
was  dead),  and  with  whom  she  continued  to  cohabit  after 
she  learned  that  Flaherty  was  still  in  existence,  and  until 
his  death  and  up  to  the  time  of  making  her  nomination,  and 
thereafter,  and  bearing  the  name  of  the  second  supposed 
spouse;  but  this  court  held  that  the  second  marriage  was 
void,  as  she  was  then  the  lawful  wife  of  Flaherty,  and  at  his 
death  as  "surviving  wife"  or  "widow"  entitled  to  nominate. 
Conversely,  it  should  seem,  if  she  was,  as  counsel  there  co'n- 
tended,  under  the  law  of  New  York,  the  wife  of  another  at 
the  time  of  application,  she  would  be  disentitled  to  nominate. 
After  full  consideration  I  cannot  discover  any  doubt  of  the 
intention  of  the  legislature.     If  hardship  result,  the  legis- 


Estate  of  Neustadt.  95 

lature  is  responsible,  not  the  court.  As  was  said  in  the 
Estate  of  Boland,  43  Cal.  643  (in  which  estate  one  of  the 
counsel  here,  W.  C.  Burnett,  Esq.,  was  concerned),  "what- 
ever right  she  (the  quondam  widow)  may  once  have 
had  ....  she  lost  when  she  lost  the  status  upon  which  the 
right  depended." 

Disregarding  the  demurrer,  the  petition  of  Mrs.  Minihan's 
nominee,  Patrick  O'Connell,  should  be  and  is  denied. 


The  Statute  of  California,  upon  which  the  decision  in  the  princi- 
pal case  is  based,  has  been  amended.  As  the  law  now  stands  in  that 
state,  and  in  many  other  states,  the  marriage  of  a  woman  seems  to 
have  nothing  to  do  with  her  competency  as  an  executrix,  as  mani- 
festly it  should  not.  She  is  entitled  to  administer  on  the  estate  of 
her  deceased  husband,  though  married  to  another  man:  Estate  of 
Dow,  132  Cal.  309,  64  Pac.  402. 


Estate  of  AUGUSTA  R.  NEUSTADT,  Deceased 

[No.   6,608;   decided  August   16,   1884.] 

Administrator's  Sale — Release  of  Bidder. — If  a  bidder  at  a  pri- 
vate sale  by  an  administrator  states  that  she  has  not  had  time  to 
examine  the  title  because  of  the  shortness  of  the  notice,  and  does 
not  wish  to  be  bound  unless  the  title  is  good,  to  which  the  admin- 
istrator assents,  she  should  be  released  from  her  bid  when  her  coun- 
sel advises  against  the  title,  whether  or  not  his  view  of  the  law  is 
correct. 

This  was  an  application  by  the  administrator  to  confirm  a 
private  sale  of  realty  returned  by  him.  The  application  was 
opposed  by  the  purchaser. 

Wm.  H.  Sharp,  for  administrator. 

Gunnison  &  Booth,  for  purchaser,  opposing. 

COFFEY,  J.  As  suggested  at  the  hearing,  the  only 
ground  which  the  court  deems  it  necessary  to  consider  is : 
Whether  the  purchaser,  who  now  seeks  to  be  excused,  was 
misled,  inadvertently  or  otherwise,  into  inaking  her  bid.     She 


<)6  Coffey's  Probate  Decisions,  Vol.  1. 

sets  up  in  her  opposition  "that  at  the  time  of  the  delivery  of 
said  bid  to  said  administrator  she  stated  that  by  reason  of 
the  short  time  of  said  notice  she  had  not  time  to  examine  the 
title  to  said  property,  and  for  that  reason  did  not  wish  to  be 
bound  by  the  bid  if  the  title  thereto  was  not  good, ' '  to  which 
proposition  she  avers  the  administrator  assented;  the  admin- 
istrator joins  issue  upon  this  allegation. 

If  the  bidder  had  been  granted  sufficient  time,  or  if  she 
had  not  been  induced  to  make  the  bid  by  reason  of  the  prom- 
ise of  the  administrator  that  she  would  have  ample  time  to 
examine  title,  she  would  not  have  made  the  offer,  acting  upon 
her  attorney's  advice  as  to  condition  of  title. 

It  is  immaterial,  in  my  judgment,  to  consider  the  sound- 
ness of  this  advice,  unnecessary  for  me  to  adjudicate  upon 
the  attorney's  accuracy  of  judgment;  enough  to  know  the 
purchaser's  conduct  would  have  been  influenced  thereby. 
Did  the  administrator  mislead  her?  Not  intentionally,  per- 
haps, but  the  evidence  seems  to  show  that  the  required  op- 
portunity of  examination  was  not  accorded  to  her;  if  it  had 
been  she  would  have  acted  differently  from  what  she  did, 
so  she  testifies;  and  whether  her  counsel's  view  of  the  law 
be  sound  or  unsound,  it  was  the  motive  to  her  act,  and  ex- 
cuses her  from  the  performance  of  a  purchase  predicated 
upon  a  promise  that  she  should  have  time  for  full  examina- 
tion. 

Upon  the  evidence  as  to  this  point,  and  upon  no  other 
ground,  is  the  opposition  sustained. 


Purchasers  at  an  Administrator's  Sale  are  usually  subject  to  the 
maxim  of  caveat  emptor,  and  the  deed  can  contain  no  warranty  of 
title:  Towner  v.  Eodegeb,  33  Wash.  153,  99  Am.  St.  Eep.  936,  74  Pac. 
50;  Miller  v.  Gray,  136  Cal.  261,  68  Pac.  770. 


Estate  of  Fisher.    '  97 


Estate  of  CAROLINE  H.  FISHER,  Deceased. 

[No.   3,000;    decided   December   23,    1884;    January    8,    1886.] 

Executors — Duty  to  Collect  Assets. — It  is  not  only  the  duty  of  an 
executor  to  seek  to  recover  assets  of  the  estate,  but  should  he  forbear 
the  endeavor  he  would  be  liable  as  for  malfeasance  or  nonfeasance. 

Executors — Good  Faith  in  Bringing  Action. — Where  a  suit  brought 
by  an  executor  presented  issues  of  a  "serious"  and  ** difficult"  char- 
acter, and  occupied  many  days  in  trial,  a  nonsuit  being  refused,  it 
must  have  afforded  grounds  to  the  executor's  judgment  in  its  institu- 
tion and  prosecution. 

Executors — Eight  to  Counsel. — An  executor,  acting  in  good  faith, 
is   entitled   to   aid   of   counsel   in   all   litgation   concerning   the   estate. 

Executors — Allowance  for  Counsel  Fees. — It  being  an  executor's 
duty  to  defend  or  prosecute  for  the  estate  in  all  matters  where  in 
good  faith  he  believes  it  necessary,  he  should  be  reimbursed  though 
the  suit  be  lost. 

An  "Exhibit  and  Account"  Presented  by  an  Executor  does  not 
Operate  as  an  Estoppel  upon  the  hearing  and  settlement  of  a  subse- 
quent account  by  him;  the  items  of  the  first  account  are  impeachable, 
and  the  settlement  of  such  account  does  not  impart  a  dignity  not 
inherently  belonging  to  the  account. 

Accounts. — "Where  an  "Exhibit"  and  "Account"  Presented  by  an 
Executor  was  merely  "experimental,"  to  raise  certain  questions  as 
to  previous  acts  of  the  administration,  the  executor  will,  under  in- 
structions as  to  his  rights,  be  ordered  to  render  another  account,  which 
shall  have  the  quality  of  finality. 

Counsel  Fees. — There  is  no  Authority  in  the  Probate  Court  to  allow 
an  attorney  appointed  by  the  court  under  section  1718,  Code  of  Civil 
Procedure,  compensation  for  services  performed  in  a  suit  brought  by 
the  executor.  The  attorney's  remuneration  must  be  restricted  to  pro- 
ceedings  before   the   court   of   administration. 

This  was  an  application  for  the  settlement  of  an  account 
filed  by  executor,  Selden  S.  Wright.  A  contest  was  filed 
on  the  part  of  Estelle  L.  Dudley,  a  daughter  of  testatri.x,  and 
al^o  a  grantee  under  a  certain  deed  made  by  testatrix  shortly 
before  her  death,  which  deed  was  the  subject  matter  of  the 
suit  brought  by  the  executor,  referred  to  in  the  opinion  of 
the  court.  The  contest  was  raised  respecting  the  expenses 
of  this  suit,  and  presented  the  question  of  the  executor's 
duty  to  bring  the  suit,  and  his  good  faith  in  the  matter. 

Prob.  Dec,  Vol.  I—  7 


98  Coffey's  Probate  Decisions,  Vol.  1. 

Under  the  first  opinion  of  the  court  (December  23,  1884), 
a  new  accounting  by  the  executor  was  directed,  and,  upon 
the  presentation  of  this  second  account,  the  questions  dis- 
cussed in  the  first  opinion  were  again  raised  and  reargued ; 
and  the  question  as  to  the  right  of  an  attorney  appointed 
by  the  court  in  a  probate  proceeding  to  have  compensation 
Per  services  in  connection  with  matters  not  taking  place  in 
and  before  the  court  of  administration  was  more  particu- 
larly presented.  The  second  opinion  of  the  court  (of  Janu- 
ary 8,  1886),  rendered  upon  this  new  accounting,  reconsid- 
ered all  the  questions  raised  on  the  first  account,  and  reiter- 
ated the  former  decision ;  therefore,  only  that  part  of  the 
second  opinion  is  given  which  especially  considers  the  question 
of  the  right  of  compensation  of  the  attorney  appointed  by  the 
court.  The  suit  referred  to  in  the  opinion  of  the  court  was 
a  civil  action  begun  and  tried  in  department  No.  5  of  the  same 
court. 

M.  G.  Cobb  and  Geo.  T.  Wright,  for  the  executor. 

E.  J.  McCutchen,  for  minor  heir. 

Daniel  Titus  and  James  C.  Cary,  for  contestant. 

COFFEY,  J.  Counsel  must  be  content  with  a  summary 
of  conclusions  of  the  court,  as  I  have  no  leisure  to  extend 
the  reasoning,  although  I  have  well  considered  the  case  and 
the  arguments. 

1.  The  duty  of  the  executor: 

It  was  not  only  the  duty  of  the  executor  to  seek  to  recover 
assets  of  the  estate,  but  had  he  forborne  such  endeavor,  he 
would  have  been  liable  as  for  malfeasance  or  nonfeasance : 
Code  Civ.  Proc,  title  11  (of  part  3),  c.  8,  Powers  and  Duties 
of  Executors,  etc. ;  sees.  1581  et  seq. ;  c.  10,  Accounts,  etc. ; 
art.  1,  sees.  1616  et  seq. 

The  discussion  as  to  the  bona  fides  of  the  suit  against  the 
Dudleys  seems  to  be  concluded  by  the  opinion  or  "decision" 
of  Judge  Hunt  in  Wright  v.  Dudley,  which  says:  "While 
the  proceedings  in  this  case  were  hastily  commenced,  yet  I 
am  not  prepared,  from  all  the  evidence  in  the  case,  to  say 
that  they  were  instituted  in  bad  faith";  also,  the  "decision" 


Estate  op  Fisher.  99 

says  that  "the  questions  of  law  presented  on  the  trial  were 
difficult,  and  in  some  respects  serious,  and  their  solution  by 
no  means  an  easy  matter."  A  case  presenting  issues  of  a 
"serious"  and  "difficult"  character,  and  occupying  many 
days  in  trial,  in  which  a  nonsuit  was  refused,  must  have 
afforded  some  grounds  to  the  judgment  of  the  executor  for 
its  institution  and  prosecution.  If  the  prosecution  were  with- 
out merit,  it  would  seem  inequitable  to  cast  the  defense  in 
any  costs;  but  Judge  Hunt  decided,  for  the  reasons  sug- 
gested, to  wit,  the  difficulty  and  seriousness  of  the  questions, 
to  apportion  the  costs  of  that  action. 

The  questions  here  argued  with  great  elaboration  by  coun- 
sel for  contestants  seem  to  me  disposed  of  by  the  department 
presided  over  by  Judge  Hunt,  in  which  the  suit  of  Wright 
V.  Dudley  was  determined. 

As  to  the  haste  with  which  the  suit  was  brought :  It  was 
the  duty  of  the  executor  to  proceed  with  diligence,  as  delay 
might  have  incurred  the  loss  of  property  by  enabling  the 
grantee  to  part  with  it  to  a  purchaser  who  could  not  be  pur- 
sued. 

The  court  considers  that  the  action  of  Wright  v.  Dudley 
was  begun  and  carried  on  by  the  plaintiff  executor  as  a  duty, 
and  that  the  expenses  incurred  and  obligations  assumed  were 
contracted  in  good  faith.  An  executor  acting  in  good  faith 
is  entitled  to  the  aid  of  counsel  in  all  litigation  concerning 
the  estate:  Code  Civ.  Proc,  sec.  1616. 

It  being  the  duty  of  a  representative  to  defend  the  estate 
against  claims,  or  to  prosecute  suits  upon  claims,  which  he 
believes  should  be  defended  or  prosecuted,  in  the  exercise  of 
his  honest  judgment,  he  should  be  reimbursed,  even  though 
the  suit  be  lost:  Re  Miller.  4  Redf.  304. 

Mr.  McCutchen  having  appeared  in  the  litigation  at  the 
Instance  of  the  executor,  ;md  having  rendered  service,  is  en- 
titled to  be  considered  in  this  connection :  Estate  of  Simmons, 
43  Cal.  543. 

The  second  objection  and  exception  is  overruled  and  de- 
nied. 


100  Coffey's  Probate  Decisions,  Vol.  1. 

2.  "The  Exhibit  and  Account"  of  May  3,  1884: 

The  paper  indorsed  "Exhibit  and  Account  of  Executors," 
filed  May  3,  1884,  does  not  operate  an  estoppel  upon  the  ex- 
ecutor, nor  does  the  "Order  Settling  Exhibit  and  Account," 
filed  May  16,  1884,  give  a  dignity  to  that  paper  to  which  it 
is  not  inherently  entitled.  The  items  thereof  may  now  be 
impeached.  If  counsel  deem  it  necessary,  let  the  order  set- 
tling it  be  set  aside. 

3.  "The  Exhibit  and  Account  of  Executor,"  filed  August 
19,  1884: 

I  understood  from  his  remarks  upon  the  hearing  that  the 
presentation  of  this  paper  by  the  executor  was  "experi- 
mental," merely  to  raise  the  points  as  to  whether  he  had 
any  claims  to  include  in  an  account.  Let  him  now,  there- 
fore, under  the  instruction  of  this  opinion  as  to  his  powers, 
duties  and  rights,  prepare  and  file  an  account  of  his  admin- 
istration from  the  beginning,  and,  when  such  account  is  pre- 
sented and  filed,  a  day  will  be  set  for  the  hearing,  or  the  ac- 
count sent  to  a  referee,  as  to  the  respective  counsel  may  seem 
expedient. 

The  prayer  of  the  "Petition  and  Report  accompanying 
Exhibit  and  Account"  should  be  formally  denied,  with  leave 
to  the  executor  to  file  a  first  and  final  account,  as  indicated 
in  the  foregoing  opinion. 

OPINION  on  second  APPLICATION. 

The  argument  of  the  counsel,  Mr.  Titus,  in  regard  to  the 
compensation  of  the  attorney  for  the  minor  heir  in  the  trial 
of  Wright  V.  Dudley,  has  convinced  this  court  that  it  is  not 
competent  to  consider  such  claim  under  section  1718,  Code  of 
Civil  Procedure,  and  that  the  attorney's  remuneration  must 
be  restricted  to  probate  proceedings.  As  attorney  for  minor 
heirs,  there  is  no  authority  in  the  court  to  allow  him  for 
services  rendered  in  the  action  of  Wright  v.  Dudley;  and 
for  the  services  he  did  render,  he  must  look  to  the  executor. 
However  harsh  this  may  seem,  I  am  satisfied,  upon  reargu- 
ment  and  reflection,  that  it  is  the  law. 


Estate  of  Shillaber.  101 


Estate  of  CYNTHIA  HOFF  SHILLABER,  Deceased. 

[No.   4,015;   decided  January   7,   1886.] 

Special  Administrator. — It  is  the  Duty  of  a  Special  Administrator 
to  Collect  and  preserve,  for  the  executor  or  administrator,  all  person- 
alty and  choses  of  every  kind  belonging  to  the  decedent  and  his 
estate;  also  to  take  the  charge  of,  enter  upon  and  preserve  from  dam- 
ages, waste  and  injury  the  realty. 

Special  Administrator — Actions  by  and  Against. — For  all  purposes 
of  the  performance  of  the  duty  of  a  special  administrator  to  collect 
and  preserve  the  assets,  real  and  personal,  of  the  decedent,  and  for 
all  necessary  purposes,  he  may  commence  and  maintain  or  defend 
suits  and  other  legal  proceedings,  as  in  the  case  of  a  general  adminis- 
trator. 

Special  Administrator — Accounts. — The  Accuracy  of  a  special  ad- 
ministrator's account  will  be  tested  by  strictly  legal  methods,  under 
the  rule  of  section  1415,  Code  of  Civil  Procedure,  and  his  duty  as 
therein   found,  and  as  defined  in  the  first  and  second  headnotes  above. 

Special  Administrator — Allowance  for  Clerical  Assistance. — In  this 
case  the  court  allowed  the  special  administrator  for  clerical  help  in 
collection  of  rents,  and  keeping  the  accounts,  four  per  cent  upon  the 
collections;  but  reserved  the  right  in  other  cases  to  deal  differently 
with  a  similar  item. 

Special  Administrator. — An  Item  of  Expense  for  Detective  Service, 
claimed  to  be  incurred  for  the  estate's  interest,  was  in  this  case  dis- 
allowed by  the  court. 

Special  Administrator — Expenditure  on  Personalty. — Until  distrib- 
ution, an  article  of  personalty  specifically  bequeathed  by  decedent 
must  be  treated  as  part  of  the  estate,  and  not  allowed  to  deteriorate. 
Hence,  where  the  special  administrator  has  made  an  expenditure  upon 
such  article  to  prevent  its  deterioration,  the  item  should  be  allowed 
in  his  account. 

An  Executor  is  Entitled  to  the  Assistance  of  Counsel,  Even  When 
He  is  Himself  an  Attorney;  and  he  will  be  granted  an  allowance  for 
counsel  employed  by  him;  but  in  dealing  with  the  question,  the  court 
will  be  mindful  of  the  fact  that  the  executor  is  an  attorney  of  ability. 

The  Administrator  was  Allowed  Counsel  Fees,  Although  His  Coun- 
sel was  His  Law  Partner,  in  the  case  at  bar,  it  being  proved  that  in 
this  service  such  counsel  was  not  the  business  partner  of  the  admin- 
istrator. 

Special  Administrator — Expenditures  for  Business  Trip. — Where  a 
special  administrator  has  in  good  faith  journeyed  to  a  distant  state 
upon  business  of  the  estate,  an  allowance  will  be  made  to  him  therefor; 


102  Coffey's  Probate  Decisions,  Vol.  1. 

but  he  will  be  entitled  to  no  greater  remuneration  than,  in  the  court's 
opinion,  would  be  proper  for  the  dispatch  of  the  business  of  such 
journey. 

Special  Administrator. — For  the  Compensation  of  a  Special  Admin- 
istrator, the  court  can  accept  no  other  standard  than  that  furnished 
by  section  1618,  Code  of  Civil  Procedure  (for  general  administration). 
Commissions  are  here  allowed  on  the  amount  accounted  for,  includ- 
ing an  additional  sum  of  one-half  of  such  commissions  for  extra 
service,   as   permitted   under   such   section. 

Devisee — Right  to  Possession. — A  Tenant  of  Realty,  specifically  de- 
vised to  her  for  life,  is  not  entitled  to  possession  on  testator's  death. 
But  as  she  will  be  entitled  to  the  rents,  issues  and  profits  upon  dis- 
tribution of  the  estate,  her  intermediate  occupancy  might  not  ordi- 
narily challenge  criticism;  yet  aliter,  if  objection  made. 

Administrator — Liability  for  Rents  When  He  Places  Devisee  in  Pos- 
session.— In  the  face  of  objection  an  administrator  will  be  held  ac- 
countable for  the  rental  value  of  realty  specifically  devised  by  his 
testator,  which  he  has  placed  in  the  possession  of  the  devisee.  But 
where  the  premises  contained  certain  articles  of  personalty,  which 
the  testator  directed  to  have  left  there  and  which  the  administrator 
claimed  should  be  cared  for,  the  court  will  take  into  account  the  care 
bestowed  upon  the  property  by  the  devisee. 

This  was  a  contest  to  the  settlement  of  the  account  of  the 
special  administrator.  Mr.  Carroll  Cook,  the  special  admin- 
istrator of  the  estate  (also  the  nominated  executor  of  de- 
cedent's will),  filed  his  first  and  final  account  as  special  ad- 
ministrator upon  the  twenty-fourth  day  of  September,  1885 ; 
and  on  October  5,  1885,  written  objections  thereto  were  filed 
by  Frances  H.  Lowndes  (a  sister  of  testatrix)  in  her  own 
right  as  heir  of  testatrix,  and  as  guardian  of  the  person  and 
estate  of  Theodora  Lowndes,  a  minor,  interested  in  the  es- 
tate. The  objections  were  exhaustive,  but  only  those  are 
here  (and  in  the  decision)  explained  which  involved  some 
principle  or  question  of  law;  those  not  explained  being  the 
subject  only  of  some  controverted  question  of  fact. 

As  to  the  first  objection,  it  appears  that  the  administra- 
tor had  made  an  expense  of  $320  for  gardening,  etc.,  with 
respect  to  the  premises  referred  to  by  the  court  in  the 
consideration  of  the  tenth  objection.  The  objection  to  this 
item,  so  far  as  it  involved  a  question  of  law,  was  that  the 
administrator  was  blowing  hot  and  cold;  claiming  that  the 
realty   upon   which  the   expense   was   alleged  to   have   been 


Estate  of  Shillaber.  103 

made  had  been  specifically  devised  by  testatrix,  and  there- 
fore the  title  had  vested  in  the  devisee,  and  the  premises 
constituted  no  part  of  the  estate;  while,  on  the  other  hand, 
contending  that  the  property  belonged  to  the  estate  for  the 
purpose  of  its  care  and  preservation  during  the  administra- 
tion. The  court  having  subsequently,  under  the  tenth  ob- 
jection, held  that  the  premises  were  part  of  the  estate,  and 
the  administrator  accountable  for  their  rental  value,  in  ac- 
cordance with  the  reason  of  that  ruling,  allowed  this  item 
as  proper  from  a  legal  point  of  view,  the  property  of  the 
expense  having  been  first  determined  by  the  court. 

The  fifth  objection  was  to  an  item  in  the  account  for 
services  of  a  detective  employed  by  the  administrator  and 
claimed,  to  be  in  the  interest  of  the  estate  and  the  adminis- 
tration. The  sixth  objection  was  to  an  item  of  $60,  for 
repairs  to  an  organ  removed  by  the  administrator  from  the 
place  of  its  situs  at  testatrix's  death,  on  account  of  its  con- 
stant deterioration  from  want  of  care,  climatic  influence,  etc. 
The  objection  was  on  the  ground  that  the  article  had  been 
specifically  bequeathed,  and  the  legatee  could  only  claim 
the  gift  in  the  condition  in  which  it  was  left  by  the  testa- 
trix, and  that  it  was  not  the  function  of  the  administrator 
to  keep  property  for  legatees  in  any  particular  state  of 
preservation. 

The  seventh  objection  was  to  an  item  of  $500,  charged  as 
fees  of  the  attorney  tor  the  administrator.  The  objection 
was  on  the  ground  that  the  attorney  was  a  brother  and  law 
partner  of  the  administrator;  furthermore,  that  the  admin- 
istrator was  himself  an  attorney,  and  hence  there  was  no  ne- 
cessity for  getting  the  usual  professional  assistance,  and  that 
even  here  much  of  the  work  of  the  administration  was  done 
by  the  administrator  and  not  by  the  attorney. 

The  tenth  objection  was  to  an  item  of  $2,500,  placed  at 
the  end  of  the  credit  side  of  the  administrator's  account 
as  a  charge  by  him  as  administrator  to  cover  all  his  services 
in  the  special  administration  of  the  estate,  and  to  include 
all  his  expenses  in  making  a  journey  to  New  York  (referred 
to  in  the  opinion)  to  attend  to  certain  litigation  and  in- 
terests there  in  behalf  of  the  estate,  and  also  including  com- 


104  Coffey's  Probate  Decisions,  Vol.  1. 

pensation  for  time  and  labor  with  respect  to  certain  suits 
to  which  the  estate  was  a  party. 

Wm.  Hoff  Cook,  for  special  administrator. 

Carroll  Cook,  special  administrator,  in  pro.  per. 

W.  S.  Wood  and  B.  Noyes,  for  objectors. 

COFFEY,  J.  It  is  the  duty  of  the  special  administrator 
to  collect  and  preserve  for  the  executor  or  administrator  all 
the  goods,  chattels,  debts  and  effects  of  the  decedent,  all 
incomes,  rents,  issues  and  profits,  claims  and  demands  of 
the  estate;  he  must  take  the  charge  and  management  of, 
enter  upon  and  preserve  from  damage,  waste  and  injury 
the  real  estate,  and  for  any  such  and  all  necessary  purposes 
may  commence  and  maintain  or  defend  suits  and  other  legal 
proceedings  as  an  administrator:  Code  Civ.  Proc,  sec.  1415 

The  account  here  under  examination  runs  from  and  in- 
cluding February  26,  1885,  to  and  including  September  1, 
1885 — say  six  months.  Its  accuracy  must  be  tested  by 
strictly  legal  methods,  under  the  rule  of  the  foregoing  cited 
section  of  the  code. 

First  Objection :  Payler  payments,  numbers  7,  30,  46,  64, 
78,  92,  99 :  disallowed,  i.  e.,  objection  overruled :  Estate  of 
Miner,  46  Cal.  572. 

Second  Objection :  As  to  voucher  5 :  objection  overruled ; 
item  allowed.  As  to  vouchers  23,  26,  28,  45,  56,  71,  91  and 
96:  "When  in  the  care  and  management  of  a  large  estate, 
it  is  shown  to  be  impracticable  to  do  without  clerical  as- 
sistance to  collect  rents  and  keep  accounts,  the  court  usually 
makes  some  allowance,  but  the  exercise  of  this  discretion 
should  be  guarded.  The  executor  is  expected  to  perform 
some  labor,  and  to  use  the  utmost  economy  consistent  with 
the  protection  of  the  estate  intrusted  to  his  custody  and 
care.  I  have  never  made  such  allowances  without  rigorous 
proof  of  necessity,  even  when  no  objection  was  interposed 
but  such  allowances  have  been  made  in  probate  courts  re- 
peatedly and  in  such  circumstances  as  are  suggested  in  this 
case.  Even  if  proper,  however,  the  charge  is  out  of  pro- 
portion to  the  result.  I  shall  allow  at  the  rate  of  four  per 
cent  upon  the  collections;  reserving  to  myself  the  right  in 
other  accounts  to  deal  otherwise  with  any  similar  item,  and 


Estate  of  Shilljvber.  105 

acting  now  upon  the  evidence  before  me  and  my  present 
view  of  the  duty. 

Third   Objection :  Overruled   under  the   evidence. 

Fourth  Objection :  Overruled  under  the  evidence. 

Fifth  Objection:  Sustained.  The  court  cannot  under- 
stand the  reason  or  necessity  in  such  a  case  for  such  a 
charge. 

Sixth  Objection :  Until  distribution  the  organ  must  be 
treated  as  part  of  the  estate,  and  not  allowed  to  deteriorate. 
Objection  disallowed  and  overruled. 

Seventh  Objection:  Attorney's  fee,  $500.  The  executor 
is  entitled  to  such  assistance,  even  when  he  is  himself  an  at- 
torney, and  he  needs  other  counsel.  In  this  case,  while  he 
has  been  actively  participant  in  all  the  proceedings,  yet  the 
counsel  claiming  the  allowance  has  done,  before  the  court, 
work  entitling  him  to  consideration,  and  his  evidence  is  that 
in  this  service  he  is  not  a  business  partner  of  the  executor. 
The  executor,  however,  is  a  lawyer  of  competency  and  ex- 
perience; that  he  must  expect,  hereafter,  that  the  court  will 
consider  this  fact  in  dealing  with  his  accounts.  In  this  in- 
stance I  think  the  item  should  be  allowed. 

Eighth  Objection:  Overruled. 

Ninth  Objection:  Overruled. 

Tenth  Objection:  With  reference  to  this  objection  the 
court  has  given  careful  attention  to  the  brief  presented  by 
the  special  administrator,  and  is  disposed  to  consider  this 
claim  in  the  most  liberal  spirit  consistent  with  its  view  of 
the  law.  The  special  administrator  undoubtedly  acted  in 
good  faith  in  journeying  to  New  York  in  response  to  the 
telegram  from  Buffalo;  but  he  should  have  consumed  no 
more  time  than  was  actually  necessary  in  the  discharge  of 
his  business,  and  he  is  entitled  to  no  more  remuneration 
than,  in  the  opinion  of  the  court,  would  be  proper  for  the 
dispatch  of  his  errand  to  the  east.  The  court  regulates  his 
charges  in  this  manner: 


106  Coffey's  Probate  Decisions,  Vol.  1. 

21  days  necessarily    consumed;    loss    of    time,    at 

$20 $420  00 

7  days  in  New  York,  at  $5    per   day;    board,    etc,         35  00 


$455  00 
For  his  compensation  as  special  administrator 
the  court  can,  in  the  due  exercise  of  its  discretion, 
accept  no  other  standard  than  that  furnished  by 
section  1618,  Code  of  Civil  Procedure,  and  allow 
accordingly : 

Commissions  on  amount  accounted  for,  $10,394  14. 

First  $1,000  00 $70  00 

9,000  00 450  00 

394  14 15  77 

$535  77 
Extra  comp.,  one-half  rates 267  88 

$803  65 


$1,258  65 

Tenth  objection:  While  the  tenant  of  the  life  estate  is 
not  entitled  to  immediate  possession,  she  will  be  entitled  on 
distribution  to  the  rents,  issues  and  profits;  and,  ordinarily, 
her  intermediate  occupancy  might  not  seem  to  challenge 
criticism;  but  in  the  face  of  objection,  the  court  cannot  dis- 
regard the  strictly  legal  aspect  of  the  case;  and  must,  there- 
fore, hold  the  administrator  accountable  for  the  rental  value 
of  the  premises ;  being  disposed,  however,  to  take  into  ac- 
count the  care  bestowed  upon  the  property  by  the  tempo- 
rary tenant  or  custodian.  In  allowing  for  the  first  (Payler) 
items  objected  to,  the  court  has  bestowed  some  consideration 
upon  this  point.  The  court  will  hold  the  administrator  for 
the  ascertained  rental  value  of  the  premises  on  Sixteenth 
Street.  Let  the  account  of  the  special  administrator  be  re- 
stated or  amended  in  accordance  with  this  opinion. 

An  Administrator  is  Entitled  to  an  Allowance  for  necessary  ex- 
penses incurred  in  traveling  on  business  connected  with  the  preserva- 
tion of  the  estate:  Estate  of  Byrne,  122  Cal.  260,  54  Pac.  957;  Es- 
tate of  Rose,  80  Cal.   166,  22  Pac.  86;   Eice  v.  Tilton,  14  Wyo.  101, 


Guardianship  op  Murphy.  107 

82  Pac.  577.  Traveling  expenses  connected  with  the  administration 
of  foreign  assets  should  be  allowed  out  of  those  assets:  Estate  of 
Ortiz,  86  Cal.  316,  21  Am.  St.  Eep.  44,  24  Pac.  1034.  An  administra- 
trix is  not  entitled  to  expenses  incurred  in  traveling  when  taking 
steps  to  apply  for  letters  of  administration,  or  in  attending  the  hear- 
ing of  a  contest  over  letters  of  administration:  Estate  of  Byrne,  122 
Cal.  260,  54  Pac.  957. 

An  Administrator  may,  Under  Some  Circumstances,  "be  Allowed  in 
his  accounts  for  the  services  of  a  bookkeeper:  Estate  of  Moore,  72 
Cal.  335;  13  Pac.  880;  or  of  an  expert  accountant:  Estate  of  Levinson, 
108  Cal.  450,  41  Pac.  483,  42  Pac.  479.  As  a  rule,  the  question 
whether  an  administrator  is  entitled  to  employ  a  bookkeeper  depends 
on  the  circumstances  of  the  estate;  and  should  be  left  to  the  discre- 
tion of  the  court:  Estate  of  More,  121  Cal.  609,  54  Pac.  97.  He  can- 
not charge  the  estate  with  the  expense  of  hiring  assistance  in  keeping 
his  ordinary  accounts:  Lucich  v.  Medin,  3  Nev.  93,  93  Am.  Dec.  376; 
Steel  V.  Holladay,  20  Or.  462,  20  Pac.  562. 

In  Case  an  Executor  or  Administrator  is  Himself  an  attorney,  he 
cannot  charge  the  estate  with  the  expense  of  another  attorney  to  as- 
sist him  in  conducting  the  ordinary  administration,  unattended  with 
any  legal  or  other  complications:  Noble  v.  Whitten,  38  Wash.  262, 
80  Pac.  451:  Estate  of  Young,  4  Wash.  534,  30  Pac.  643;  Estate  of 
Coursen   (Cal.),  65  Pac.  965. 


Guardianship  op  ANNIE  MURPHY,  Minor. 

[No.  4,385;   decided  September  4,   1885.] 

Guardianship. — The  Probate  Court  has  no  Jurisdiction  to  appoint 
a  guardian  for  a  child  who  has  been  awarded  to  a  parent  in  divorce 
proceedings,  while  the  divorce  court  retains  the  right  to  control  the 
custody  of  the  child. 

This  was  an  application  by  the  father  of  Annie  Murphy, 
a  minor,  to  be  appointed  her  guardian.  Mary  Murphy,  the 
mother  of  the  child,  contested  the  application. 

It  appeared  that  in  an  action  for  divorce,  pending  be- 
tween the  petitioner  and  contestant,  in  department  8  of  the 
superior  court  of  San  Francisco,  the  custody  of  the  child  had 
been  awarded  to  the  contestant. 

Counsel  for  contestant  claimed  that  the  court  granting  the 
divorce,  and  awarding  the  custody  of  the  child  to  one  of  the 


108  Coffey's  Probate  Decisions,  Vol.  1. 

parties,  retained  full  and  exclusive  control  over  the  subject 
matter,  and,  besides  citing  numerous  authorities,  quoted  sec- 
tion 138  of  the  Civil  Code  of  California,  which  is  as  follows : 

"In  an  action  for  a  divorce,  the  court  may,  before  or  after 
judgment,  give  such  directions  for  the  custody,  care  and 
education  of  the  children  of  the  marriage  as  may  seem  neces- 
sary or  proper,  and  may  at  any  time  vacate  or  modify  the 
same. ' ' 

Petitioner's  counsel  proceeded  under  sections  1747  et  seq., 
Code  of  Civil  Procedure,  relating  to  the  subject  of  guardian 
and  ward. 

They  maintained  that  the  action  of  the  court  in  the  di- 
vorce proceeding  is  merely  ancillary  to  the  main  purpose 
of  the  suit — the  procurement  of  a  divorce;  and  that  the 
point  in  controversy  in  that  proceeding  was  not  as  to  who 
should  have  the  custody  of  the  minor — that  she  was  not  a 
party  thereto — but  merely  as  to  whether  one  of  the  spouses 
was  entitled  to  a  divorce,  and  that  therefore  the  order  of 
department  8  was  not  conclusive  as  to  the  custody  of  the 
child,  and  does  not  debar  the  court  having  the  control  of 
minors  from  exercising  its  jurisdiction.  It  may  be  added 
that,  by  rule  of  the  superior  court  of  San  Francisco  (con- 
sisting of  twelve  departments),  all  probate  matters  and  those 
relating  to  the  guardianship  of  minors  are  assigned  to  de- 
partment No.  9,  which  hears  only  probate  and  guardianship 
proceedings. 

Taylor  &  Craig,  for  petitioner. 

Leonard  S.  Clark,  for  contestant. 

COFFEY,  J.  This  court  cannot  entertain  jurisdiction 
while  the  divorce  court  still  retains  the  right  to  control  the 
custody  of  the  minor:  Anthony  v.  Dunlap,  8    Cal.  26. 

Application  denied. 


Estate  of    McDougal.  109 


Estate  of  DAVID  McDOUGAL,  Deceased. 

[No.  2,278;  decided  Sept.  12,  1884.] 

Administrator. — A  Surviving  Wife  has  the  Right  to  Nominate  an 
administrator  of  her  husband's  estate,  although  she  has  been  removed 
from  her  position  as  executrix  of  his  will  because  of  her  permanent 
removal  from  the  state. 

David  McDougal  died  on  August  7,  1882,  in  San  Fran- 
cisco, a  resident  thereof,  leaving  a  last  will  wherein  his  wife, 
Caroline  M.  McDougal,  was  named  as  executrix. 

On  May  25,  1883,  letters  testamentary  were  issued  to  her; 
and  on  October  1,  1883,  she  left  this  state  for  Washington, 
D.  C. 

Thereafter  proceedings  were  instituted  under  Sections 
1136  et  seq..  Code  of  Civil  Procedure,  for  the  revocation  of 
her  letters,  on  the  ground  that  she  had  permanently  removed 
from  this  state,  and  on  July  16,  1884,  an  order  was  made 
removing  her  from  her  position  as  executrix. 

A  request  in  writing  by  her,  for  the  appointment  of  W. 
K.  Van  Alen  as  administrator  with  the  will  annexed,  was 
subsequently  filed,  with  a  petition  for  his  appointment. 

A  counter-application  was  filed,  but  was  denied.  The 
grounds  of  contest  of  this  application  appear  from  the  facts 
above  recited  and  the  opinion. 

P.  J.  Van  Loben  Sels,  for  Mrs.  K.  C.  McDougal. 

J.  B.  Reinstein,  for  nominee  of  surviving  wife. 

COFFEY,  J.  I  have  read  carefully  the  briefs  of  respec- 
tive counsel  in  these  applications,  but  do  not  consider  it 
necessary  to  express  any  opinion  as  to  the  correctness  of  the 
conclusions  of  either;  since  section  1426  of  the  Code  of  Civil 
Procedure  (to  which  they  did  not  refer  in  their  briefs,  but 
which  was  discussed  orally  in  open  court)  disposes  of  the 
matter.  As  the  court  said  at  the  hearing,  it  can  only  exer- 
cise its  discretion  under  the  limitations  of  the  statute,  and 
section  1426  brings  this  case  within  the  conditions  of  section 
1365,  Code  of  Civil  Procedure.  The  conduct  of  the  execu- 
trix and  the  cause  of  her  removal  do  not  affect  her  right  of 
nomination,  since  the  statute  does  not  so  declare. 


110  Coffey's  Probate  Decisions,  Vol.  1. 

It  does  not  appear  that  Van  Alen  is  incompetent  under 
the  statute;  and  this  being  so,  he  is  entitled  as  of  right, 
as  the  nominee  of  the  surviving  wife,  to  letters  of  administra- 
tion with  the  will  annexed :  Code  Civ.  Proc.,  sees.  1365,  1426. 


A  Surviving  Spouse,  though  incompetent  to  act  as  administrator 
because  of  nonresidence,  is  entitled  to  nominate  some  competent  person 
for  the  position:  Estate  of  Dorris,  93  Cal.  611,  29  Pac.  244;  Estate  of 
Healey,  122  Cal.  162,  54  Pac.  736. 


Estate  of   THOMAS   H.   BLYTHE,   Deceased. 

[No.  2,401;  decided  February  12,  1885.] 

Coimsel  Fees. — The  Difficulty  and  Delicacy  of  the  Court's  Duty,  in 
adjusting  applications  of  attorneys  for  allowance  of  fees,  expressed. 

Attorneys — Duty  to  Submit  to  Court. — Among  the  duties  of  an  at- 
torney is  that  of  submission  to  the  court  in  the  exercise  of  a  discre- 
tion not  abused,  without  demur  or  murmur.  He  is  to  advise  and 
counsel  simply,  leaving  the  court,  in  its  own  way,  to  come  to  a  con- 
clusion. 

Counsel  Fees. — In  the  Consideration  of  Applications  for  Fees  by  at- 
torneys appointed  by  the  court,  the  appointee  and  applicant  should 
be  especially  indulgent  to  the  court  which  has  chosen  him  in  its  en- 
deavor to  properly  adjust  the  rights  of  the  applicant.  The  duty  of 
submission  to  the  court,  stated  in  the  second  headnote  above,  is  es- 
pecially applicable  to  these  attorneys. 

Counsel  Fees. — Whether  an  Estate  in  Probate  is  Large  or  Small, 
whether  it  may  escheat  or  not,  or  go  to  claimants  then  unknown,  the 
principles  of  law  governing  the  compensation  of  an  attorney  are  the 
same,  and  should  be  applied  rigorously  by  the  court. 

Counsel  Fees. — In  Fixing  Attorneys'  Fees  There  are  no  Established 
Rules;  the  character  and  circumstances  of  every  case,  founded  upon 
general  principles  of  justice,  and  the  reasonable  value  of  a  capable 
attorney's  services,  must  furnish  the  rule. 

Counsel  Fees. — In  Determining  the  Compensation  of  an  Attorney  it 
has  been  the  practice,  and  has  become  the  rule  of  the  court,  that  ex- 
pert testimony  as  to  the  value  of  the  services  will  not  be  considered. 
The  judge  will  determine  the  matter  for  himself. 

Administration — Extravagant  Costs. — The  Impression,  Widely  Preva- 
lent, of  the  extravagant  cost  of  administering  estates,  referred  to  and 
the  court's  position  stated. 


Estate  of  Blythe.  Ill 

Attorneys. — The  Probate  Judge  is  the  Guardian  of  all  Decedents' 
Estates;  but  the  law  contemplates  an  aid  in  the  selection  of  a  com- 
petent attorney  to  protect  the  court  against  spurious  claimants,  or 
fraudulent  devices  or  practices  of  any  sort. 

Attorneys. — It  is  the  Duty  of  an  Attorney  Appointed  by  the  Court 
in  the  administration  of  a  decedent's  estate,  as  the  legal  representa- 
tive of  the  heirs,  to  discover  and  demonstrate  to  the  court  the  true 
heir,  and  to  expose  and  denounce  all  pretenders. 

This  was  an  application  by  John  C.  Burch,  who  was  the 
appointee  of  the  court  to  represent  absent  and  other  heirs, 
for  an  allowance  of  $1,750  on  account  of  services  performed 
under  his  appointment.  After  overruling  a  demurrer  to  the 
petition,  the  matter  was  sent  to  a  referee  for  adjustment,  and 
was  reported  back  for  allowance.  The  referee's  ruling  was 
excepted  to,  and  the  opinion  below  was  rendered  on  a  review 
of  the  report  of  the  referee,  Mr.  A.  H.  Loughborough. 

John  A.  Wright,  for  administrator. 

T.  I.  Bergin,  W.  H.  H.  Hart  and  David  McClure  (appointee 
of  court),  for  Florence  Blythe. 

John  C.  Burch,  in  pro.  per. 

COFFEY,  J.  The  adjustment  of  attorneys'  accounts  and 
applications  for  compensation  is  one  of  the  most  delicate  and 
difficult  incidents  of  the  office  of  judge,  particularly  in  the 
probate  department,  where  so  many  such  applications  are 
made.  The  attorney  is  naturally  anxious  for  a  fee,  which 
is  sometimes  resisted  with  vigor,  and  sometimes  there  is  no 
one  to  resist,  save  the  court,  in  the  exercise  of  what  it  con- 
ceives to  be  the  interest  of  the  estate.  In  discharging  this 
duty  the  court  is  constantly  withstood  by  practitioners  who 
seem  to  forget,  in  the  pursuit  of  their  private  gain,  the  higher 
obligations  they  are  under  to  the  law  which  permits  them  to 
practice,  and  to  the  court  whose  officers  they  are ;  occasionally 
an  attorney  appears  who  considers  (or  seems  to  consider) 
the  court  as  a  convenience  for  him,  and  who  resents  the 
court's  regulation  of  his  fees  as  an  exercise  of  arbitrary  au- 
thority. Such  attorneys  mistake  their  vocation  or  its  duties ; 
they  have  rights  which  the  court  is  always  careful  to  regard ; 
but  they  have  also  duties  which  are  the  source  of  those  rights, 


112  Coffey's  Probate  Decisions,  Vol.  1. 

and  which  duties  the  court  will  endeavor  to  see  are  faithfully 
performed. 

Among  these  duties  is  that  of  submitting  to  the  court  in 
the  exercise  of  its  discretion,  when  it  is  not  abused,  without 
demur  or  murmur;  but  instead  of  doing  so,  they  undertake 
to  direct  the  court,  instead  of  simply  advising  and  counsel- 
ing it,  and  then  leaving  the  court,  in  its  own  way,  without 
molestation  or  undue  urging,  to  its  time  for  reflection  or  de- 
liberation, so  that  it  may  come  to  a  correct  conclusion  free 
from  obstruction  or  irritation  produced  by  importunity  or 
intercession  out  of  court. 

These  remarks  are  peculiarly  applicable  to  petitions  for 
fees  by  appointed  attorneys,  who  should  be  especially  indul- 
gent to  the  court  which  has  chosen  them  to  perform  impor- 
tant duties ;  and  the  remarks  are  made  now  and  here,  because 
this  is  an  estate  of  magnitude  and  many  complications,  in 
which  the  court  is  apt  to  be  called  upon,  and  has  been  called 
upon,  to  act  on  applications  for  large  allowances.  Whether 
the  estate  be  large  or  small,  however;  whether  it  may  ulti- 
mately escheat  to  the  state,  or  go  to  some  of  the  present  claim- 
ants, or  to  others  not  yet  before  the  court,  the  principles  of 
law  are  the  same,  and  should  be  applied  rigorously  by  the 
court.  In  fixing  fees  there  are  no  established  rules;  every 
case,  in  its  character  and  circumstances,  must  furnish  its 
own  rule,  founded  upon  general  principles  of  justice  and 
the  reasonable  value  of  a  capable  attorney's  services.  In 
arriving  at  such  a  rule,  experience  has  taught  and  courts 
have  declared — this  particular  probate  department  repeat- 
edly— that  so-called  expert  testimony  is  unreliable ;  and  the 
judge  should  trust  to  his  own  knowledge,  experience  and 
judgment  in  establishing  the  value  of  services.  The  judge 
here  presiding  has  not  (except  in  two  or  three  earlier  in- 
stances) called  upon  experts  in  such  cases,  and  where  in  some 
instances  the  applicant  called  in  other  attorneys  to  testify, 
the  court  has  discarded  their  testimony  and  substituted  its 
own  judgment.  It  is  not  necessary  to  discuss  further  the 
reason  of  this  practice;  the  supreme  court  has  declared  it  to 
be  correct,  and  that  is  the  end  of  the  controversy.  But  the 
court  has  so  serious  a  responsibility,  that  it  is  bound  to  de- 


Estate  op  Blythe.  113 

cide  these  questions  (as  all  other  questions  arising)  with  the 
utmost  care  and  deliberation;  and  even  then  it  is  not  free 
from  liability  to  error. 

Estates,  large  or  small,  complex  or  simple,  should  be  ad- 
ministered with  efficiency  and  economy;  and  the  impression, 
too  widely  prevalent,  of  the  extravagant  expenses  of  admin- 
istering estates  should  not  be  countenanced  by  the  court,  nor 
in  any  wise  encouraged  by  its  conduct.  Some  of  the  ap- 
plications are  extraordinary  in  their  amount,  and,  even  when 
largely  reduced  by  the  court,  seem  excessive ;  but  the  court 
does  its  utmost  to  keep  the  cost  of  administration  within 
bounds,  to  do  justice  to  worthy  and  capable  attorneys,  and 
to  save  all  that  can  be  saved  to  the  widows  and  orphans  and 
absent  persons  who  rely  upon  the  protection  afforded  to 
them  by  the  law  and  the  courts.  Unpleasant  as  it  may  be  to 
contend  with  counsel  in  this  regard,  this  court  intends  to  be 
firm  and  inflexible  in  the  application  of  the  principles  herein 
suggested. 

Now,  as  to  this  particular  application :  The  attorney  ap- 
plicant is  a  practitioner  of  large  experience,  of  high  repute 
for  integrity,  and  possessing  the  confidence  of  the  court  with 
regard  to  his  capacity  (as  is  amply  evidenced  by  his  selec- 
tion by  the  court),  and  entitled  to  adequate  compensation 
for  his  services;  but  what  "adequate"  compensation  is  may 
constitute  matter  of  difference  between  him  and  the  court, 
without  reflection  upon  him.  The  claim  he  made  here  for 
compensation  was  referred,  with  other  matters,  to  the  referee, 
who  is  also  a  lawyer  of  ability,  approved  integrity  and  large 
experience,  just  and  fair  in  his  reasonings  and  conclusions, 
and  moderate  in  his  estimate  of  the  value  of  services;  and 
he  has  undertaken  to  make,  and  has  made,  a  thorough  ex- 
amination of  the  claim,  and  as  a  conclusion  therein  recom- 
mended its  allowance,  approval  and  payment. 

In  his  report  the  referee  says,  that  at  first  it  seemed  to 
him  that  the  compensation  sought  seemed  very  large,  but 
after  mature  reflection  and  careful  consideration  of  all  the 
circumstances,  he  concludes  that.it  was  well  earned;  the  ref- 
eree further  says,  in  alluding  to  the  appropriateness  of  the 
appointment,  that  this  is  an  extraordinary  case;  a  very  large 

Prob.  Dec,  Vol.  I — 8 


114  Coffey's  Probate  Decisions,  Vol.  1. 

estate  is  waiting  for  the  legal  heirs,  the  decedent  left  no  will, 
his  domestic  relations  are  involved  in  doubt ;  apart  from  his 
vast  property  he  was  an  obscure  man,  it  is  not  even  known 
with  certainty  where  he  was  born,  or  under  what  name ;  his 
family  source  is  difficult  to  discover,  and  of  the  numerous 
and  conflicting  claimants  who  have  appeared  and  asserted 
rights  to  the  inheritance,  not  one  is  an  admitted  heir,  and 
the  pretensions  of  each  must  be  scrutinized.  As  the  referee 
remarks,  the  judge  is  the  guardian  of  this  estate,  but  the 
code  contemplates  that  he  shall  be  aided  by  a  competent  at- 
torney to  protect  the  court  against  spurious  claimants  or 
fraudulent  devices  or  practices  of  any  sort,  such  as  are,  in 
every  court  and  in  every  country,  constantly  attempted  and 
occasionally  consummated.  It  is  the  duty  of  such  attorney 
to  expose  and  denounce  the  pretender  claimant  and  to  dis- 
cover and  demonstrate  the  true  heir.  The  referee  finds  that 
the  attorney  appointed  has  discharged  his  duty,  so  far.  dili- 
gently and  efficiently,  and  has  rendered  all  the  services  men- 
tioned in  his  petition,  and  that  he  is,  therefore,  entitled  to 
the  amount  claimed  as  the  reasonable  value  of  his  services. 
Now,  expressly  reserving  the  question  of  the  attorney's 
right  to  pay  for  services  rendered  in  the  litigation  in  another 
department,  and  also  expressly  declaring  that  any  future  ap- 
plication for  compensation  shall  not  be  predicated  upon  the 
allowance  here  made,  the  court  considers  that  the  judgment 
of  the  referee,  based  upon  a  complete  examination  of  the 
evidence,  and  fortified  by  his  own  matured  experience, 
ripened  knowledge  and  discriminating  intellect,  should  be 
respected,  and  at  the  same  time  the  court  desires  counsel  dis- 
tinctly to  understand  that  all  applications  of  this  nature  will 
be  subjected  to  rigid  scrutiny,  and  that  expert  evidence  will 
not  be  invited,  for  reasons  already  set  forth  with  sufficient 
succinctness.     Eeport  confirmed. 


Estate  op  Blythe  (No.  2).  115 


Estate  of  THOMAS  H.  BLYTHE,  Deceased  (No.  2). 

[No.   2,401;    decided  January   6,   1885.] 

Attorney  for  Absent  Heirs — Power  to  Appoint. — Under  section  1718, 
Code  of  Civil  Procedure,  the  probate  court  has  power  to  appoint  an 
attorney  for  absent  or  unrepresented  heirs  of  a  decedent. 

Attorney  for  Absent  Heirs — Discretion  in  Appointing. — Although 
the  probate  court  has  power  to  appoint  an  attorney  for  unrepresented 
heirs  of  a  decedent,  the  power  should  be  prudently  and  discreetly  ex- 
ercised, in  the  interests  of  the  estate  and  of  all  concerned.  The  rule 
is,  never  to  make  such  an  appointment  unless  the  necessity  is  mani- 
fest. 

Attorney  for  Absent  Heirs  When  no  Known  Heirs. — The  probate 
court  generally  refrains  from  appointing  an  attorney  for  unrepre- 
sented parties  when  there  are  no  known  heirs;  not  doubting  its  power, 
but  questioning  the  expediency  of  its  exercise  in  such  cases. 

Attorney  for  Absent  Heirs — Compensation. — An  attorney  appointed 
to  represent  heirs  is  entitled  to  an  allowance  at  any  time  after  ser- 
vices rendered,  and  during  the  administration.  An  application  for 
such  an  allowance  before  final  settlement  of  the  estate  is  not  prema- 
ture. 

Attorney  for  Absent  Heirs. — The  Compensation  of  an  Attorney  ap- 
pointed by  the  court  to  represent  heirs  must  be  paid  out  of  the  es- 
tate, as  necessary  expenses  of  administration.  Upon  distribution  of 
the  estate  the  attorney's  fee  may  be  charged  against  the  party  rep- 
resented by  him. 

This  was  a  demurrer  to  an  application  by  Jno.  C.  Biirch, 
appointed  by  the  court  to  represent  absent  and  unrepresented 
heirs,  for  an  allowance  of  $1,750,  on  account  of  services  per- 
formed by  him  under  the  appointment.  It  was  claimed  that 
such  an  allowance  could  not  be  granted  during  the  adminis- 
tration— not  until  distribution  of  the  estate;  hence  the  de- 
murrer. 

T.  I.  Bergin,  W.  H.  H.  Hart,  and  D.  McClure,  for  demur- 
rant. 

Jno.  C.  Burc'h,  for  claimant,  in  pro.  per. 

COFFEY,  J.  This  court  was  rather  reluctant  to  make 
any  appointment  in  the  first  instance,  but  upon  motion  of 
one  of  the  many  attorneys  for  the  numerous  claimants,  none 
of  the  other  attorneys  dissenting  audibly,  or  objecting  other- 


116  Coffey's  Probate  Decisions,  Vol.  1. 

wise  until  now,  the  appointment  was  made  of  a  competent 
and  reputable  practitioner  at  this  bar.  This  court  never 
makes  such  appointments  unless  the  necessity  is  manifest. 

The  court  has  the  power  to  make  such  appointment  under 
section  1718,  Code  of  Civil  Procedure,  although  it  is  a  power 
that  should  be  prudently  and  discreetly  exercised,  with  a 
view  to  the  conservation  of  the  estate  and  of  the  interests  of 
all  concerned  in  it;  and  this  court  trusts  it  has  so  exercised 
the  power  conferred  upon  it  by  the  code  in  this  as  in  other 
instances.  The  court  has  in  most  cases  refrained  from  ap- 
pointing attorneys  where  there  were  no  known  heirs,  not 
doubting  its  power,  but  questioning  the  expediency  of  its  ex- 
ercise in  such  cases ;  but  in  some  other  cases  the  result  of  the 
appointment  was  the  discovery  of  true  heirs,  who,  except  for 
the  action  of  the  court,  might  have  lost  their  inheritance. 
That  the  power  resides  in  the  court  to  make  such  appoint- 
ment is  hardly  dubitable:  Stuart  v.  Allen,  16  Cal.  504,  76 
Am.  Dec.  551 ;  Estate  of  Gasq.  42  Cal.  288 ;  Estate  of  Simmons, 
43  Cal.  547;  Gurnee  v.  Maloney,  38  Cal.  87,  99  Am.  Dec. 
352. 

This  application  is  not  premature.  The  attorney  is  en- 
titled to  an  allowance  at  any  time  after  services  rendered: 
Estate  of  Simmons,  43  Cal.  543. 

The  attorney  may  receive  a  fee,  to  be  fixed  by  the  court, 
for  his  services,  which  must  be  paid  out  of  the  funds  of  the 
estate  as  necessary  expenses  of  administration,  and  upon 
distribution  may  be  charged  to  the  party  represented  by  the 
attorney:  Code  Civ.  Proc,  sec.  1718. 

The  fee  may  be  "paid"  at  any  time  prior  to  the  "distribu- 
tion," and  then  "charged"  to  the  party  represented:  Es- 
tate of  Garraud,  36  Cal.  278. 

Mr.  Burch  was  appointed  according  to  law;  has  rendered 
services  to  the  estate  in  pursuance  of  such  appointment,  and 
is  entitled  to  compensation  therefor;  the  measure  of  which 
compensation  was  referred  to  the  referee,  from  whom  it  was 
temporarily  taken  by  the  order  of  suspension  of  his  proceed- 
ings, and  to  whom  it  should  now  be  restored.  Let  it  be  re- 
stored; and  the  referee  is  ordered  to  take  testimony  in  this 
regard  and  report  thereupon  at  his  convenience. 


Estate  of  Fitzpatrick.  117 


Estate  of  ANN  FITZPATRICK,  Deceased. 

[No.  2,623;  decided  May  19,  1885.] 

Funeral  Expenses. — The  Surviving  Husband  is  Liable  for  the  fun- 
eral expenses  of  his  wife,  where  he  has  resources  sufficient  to  respond. 

Ann  Fitzpatrick,  a  married  woman,  died  intestate,  on  May 
27,  1883,  in  San  Francisco,  a  resident  thereof,  leaving  sepa- 
rate estate  therein. 

She  left  a  surviving  husband,  Patrick  D.  Fitzpatrick,  and 
also  a  sister  named  Bridget  Curley,  as  her  heirs. 

Letters  of  administration  were  duly  issued  to  the  surviv- 
ing husband  on  July  19,  1883. 

On  March  26,  1885,  the  administrator  filed  his  final  ac- 
count, which  contained  an  item  of  $284  for  the  funeral  ex- 
penses of  his  deceased  wife.  The  sister  of  the  decedent  ob- 
jected to  this  item,  on  the  ground  that  the  surviving  hus- 
band is  liable  therefor,  he  having  the  pecuniary  ability  to 
pay,  and  it  being  averred  that  he  had  such  ability.  The  ob- 
jection  was  sustained,   and  the   item   disallowed. 

Matt.  I.  Sullivan  and  J.  E.  Abbott,  for  administrator. 

E.  N.  Deuprey  and  J.  M.  Burnett,  for  contestant. 

COFFEY,  J.  I  am  unable  to  find  any  authority  any- 
where exempting  the  surviving  husband  from  liability  for- 
the  funeral  expenses  of  the  deceased  wife,  where  he  has  re-, 
sources  sufficient  to  respond;  and  the  court  is  destitute  of 
discretion  in  such  case :  Garvey  v.  McCue,  3  Redf .  315. 


Services  Rendered  by  Physicians  and  Undertakers  to  a  married 
woman  should  be  paid  by  her  husband,  if  he  is  able  to  pay  them, 
rather  than  out  of  her  estate:  Estate  of  Weringer,  100  Cal.  345,  84 
Pac.  825;  note  in  98  Am.  St.  Rep.  647;  Constantinides  v.  Walsh,  146 
Mass.  281,  4  Am.  St.  Rep.  311,  15  N.  E.  631;  Gallaway  v.  Estate  of ; 
McPherson,   67  Mich.  546,   11  Am.  St.  Rep.  596,  35  N.  W.   114. 


118  Coffey's  Probate  Decisions,  Vol.  1. 


Estate  of  WM.  H.  WALLACE,  Deceased. 

[No.  1,198;   decided  January  28,  1884.] 

A  Distribution  of  a  Partnership  Interest,  owned  by  the  estate,  may 
be  ordered  without  a  previous  accounting  by  the  surviving  partners 
to  the  administratrix. 

Distribution  Disposes  of  the  Subject  Matter,  and  Nothing  Remains 
within  the  jurisdiction  of  the  court,  except  to  compel  obedience  to 
its  decree,  when  necessary. 

An  Administratrix  must  be  Held  to  have  Concurred,  as  such,  in  a 
request  made  by  her  in  her  own  behalf  as  widow  and  as  guardian  of 
a  minor  heir. 

An  Administratrix,  as  Such,  is  Estopped  from  Attacking  a  Decree 
Made  upon  Her  Request,  as  widow  and  as  guardian  of  a  minor  heir, 
and  concurred  in  by  her  as  administratrix. 

Wm.  H.  Wallace  died  intestate  in  San  Francisco,  on  Octo- 
ber 2,  1881.  On  October  24,  1881,  letters  of  administration 
were  duly  issued  to  his  widow,  Emeline  Wallace. 

He  left  him  surviving,  as  his  heirs,  his  widow  and  two  chil- 
dren, Cora  A.  and  Wm.  H.  Wallace,  Jr.,  the  latter  a  minor. 

Mrs.  Wallace  was  also  appointed  guardian  of  her  minor 
son. 

The  estate  was  the  owner  of  a  one-third  interest  in  the 
firm  of  Sisson,  Wallace  &  Co.,  composed  at  the  time  of  de- 
cedent's death  of  A.  W.  Sisson,  C.  W.  Crocker  and  said  Wm. 
H.  Wallace. 

An  inventory  and  appraisement,  in  which  the  interest  of 
the  estate  in  this  firm  was  set  out,  was  duly  filed. 

The  administratrix  entered  into  negotiations  with  the  sur- 
viving partners  for  the  sale  to  them  of  the  interest  of  the 
estate  in  said  partnership. 

The  result  of  these  negotiations  was  that  on  May  2,  1882, 
the  widow,  for  herself,  and  as  guardian  of  her  minor  son 
and  also  the  daughter  of  the  decedent,  filed  a  petition  for 
the  distribution  to  them,  of  the  interest  of  the  decedent  in 
said  partnership,  in  the  proportions  to  which  they  were  re- 
spectively entitled. 

The  parties  all  appeared  before  the  Judge  then  presiding 
in  Department  No.  9  (the  Hon.  Jno.  F.  Finn),  in  his  cham- 


Estate  of  Wallace.  119 

bers,  and  explained  to  him  the  purpose  of  the  application  for 
distribution,  namely,  to  sell  to  the  surviving  partners  the  in- 
terest of  the  estate  in  said  firm,  and  the  same  met  with  his 
approval. 

Thereupon,  on  May  15,  1882,  the  court  rendered  its  decree, 
listributing  said  interest  to  said  heirs  as  prayed  for. 

The  administratrix  delivered  to  the  distributees  their  sev- 
'iral  shares,  according  to  said  decree,  and  on  June  2,  1882, 
I  he  widow  and  her  daughter  conveyed  all  their  right,  title 
and  interest  in  said  firm  to  said  surviving  partners. 

The  widow,  also,  as  guardian  of  her  minor  son,  obtained 
an  order  of  court  authorizing  her,  as  such  guardian,  to  sell 
said  son's  interest  in  said  firm  under  the  decree  of  distribu- 
tion, and  accordingly  did  so,  which  sale  was  thereafter  duly 
confirmed. 

Thereafter  the  administratrix  became  dissatisfied  with  the 
sale,  claiming  that  certain  matters  were  misrepresented  to 
her,  and  also  that  she  was  compelled  to  submit  to  the  terms 
of  the  surviving  partners,  and  on  October  26,  1883,  she  ob- 
tained an  order  for  them  to  show  cause  why  they  should  not 
render  to  her  an  account  of  the  business,  property  and  affairs 
of  the  said  copartnership. 

The  application  for  the  order  was  based  upon  section  1585, 
Code  of  Civil  Procedure. 

Counsel  for  the  administratrix  claimed  that  the  decree  of 
distribution  above  mentioned  was  prematurely  made,  and 
without  authority  of  law,  and  void,  and  also  that  the  court 
had  no  jurisdiction  to  distribute  until  a  partnership  account- 
ing had  been  rendered,  and  that  until  then  there  wer»'  no 
assets  in  the  hands  of  the  administratrix. 

A.  N.  Drown,  for  administratrix,  petitioner, 

Mastick,  Belcher  &  Mastick,  for  respondents. 

COFFEY,  J.  1.  The  court  is  of  opinion  that  the  decree  of 
distribution  of  ^lay  15,  1882,  was  properly  made,  and  was 
within  the  jurisdiction  of  this  court.  I  cannot  assent  to  the 
view  of  the  counsel  for  the  petitioner  upon  this  point. 

2.  Having  by  that  decree  disposed  of  the  subject  matter, 
nothing  remains  within  the  jurisdiction  of  this  court,  except 


120  Coffey's  Probate  Decisions,  Vol.  1. 

to  compel  obedience  to  the  decree,  in  case  it  should  have  been 
disobeyed,  which  is  not  the  case. 

3.  The  petitioner  is  estopped,  as  administratrix,  by  that 
decree,  from  complaining  of  the  exercise  of  a  power  pos- 
sessed by  the  court  and  invoked  upon  her  own  request  in  be- 
half of  herself  as  widow,  and  as  guardian  of  the  minor,  and 
by  the  adult  child,  and  in  which,  as  administratrix,  she  must 
be  held  to  have  concurred. 

No  other  result  can  be  reached  by  the  court  consistently 
with  my  opinion  of  the  law  or  of  the  principles  of  equity. 
Order  discharged. 


Estate    of    CYNTHIA    HOFF    SHILLABER,    Deceased 

(No.  2). 

[No.    4,015;    decided   July    14,    1887.] 

Administrator — Allowance  for  Traveling  Expenses. — Where  an  ad- 
ministrator has,  in  good  faith,  journeyed  to  a  distant  state  upon  busi- 
ness of  the  estate,  and  has  incurred  an  attorney's  charge  in 
connection  therewith,  an  allowance  will  be  made  to  him  therefor; 
and  this  whether  or  not  he  misconceived   his  legal  duty. 

Executor — Insurance — Proof  of  Loss. — It  is  an  executor's  duty  to 
prepare  proofs  of  loss  in  case  of  a  destruction  of  insured  property 
and  hence  he  will  not  be  allowed  a  charge  incurred  for  having  such 
proofs  prepared. 

Executor — Costs  of  Copying  Papers. — All  proceedings  necessary  to 
be  taken  by  the  executor  in  the  administration  of  the  estate  are 
part  of  his  duty,  and  any  papers  drawn  in  connection  therewith  are 
covered  by  the  statutory  compensation  provided  for  his  services;  and 
the  costs  of  engrossing  or  copying  the  same  are  not  taxable  against 
the  estate. 

Executor — Allowance  for  Clerical  Help. — When,  in  a  large  estate, 
the  impracticability  is  shown  of  doing  without  clerical  assistance  to 
collect  rents  and  keep  accounts,  the  court  usually  makes  some  allow- 
ance therefor;  but  guardedly,  and  never  without  rigorous  proof  of 
necessity,  although  no  objection  be  interposed. 

The  Administrator  may  be  Allowed  a  Charge  for  Costs  Paid  in 
Serving  Notices  required  by  law  to  oust  a  defaulting  tenant,  and  al- 
though paid  to  an  agent  of  the  estate,  receiving  a  compensation  for 
collection  of  the  rents. 


Estate  op  Shillaber.  121 

An  Item  in  an  Account  for  "Executor's  Loss  of  Time"  will  be 
stricken  out. 

Appraisers. — Where  Compensation  of  Appraisers  has  been  Fixed  af- 
ter Notice  to  all  parties  interested,  the  question  will  be  thereafter 
treated  as  res  judicata. 

Appraisers. — It  is  the  Duty  of  Appraisers,  in  all  cases  where  their 
labor  extends  over  a  number  of  days,  to  preserve  a  minute  account 
of  their  services. 

An  Executor  is  Entitled  to  the  Assistance  of  Counsel,  even  When 
He  is  Himself  an  Attorney;  but  in  dealing  with  the  question  the  court 
will  be  mindful  of  the  fact  that  the  executor  is  an  attorney  of  abil- 
ity. So,  in  this  case,  conforming  to  this  rule  and  qualification,  the 
court  reduced  the  attorney's  charge  by  one-third. 

Executor — Allowance  for  Counsel  Fees. — In  the  case  at  bar  the 
executor  was  allowed  an  item  for  counsel  fees,  although  his  counsel 
was  his  law  partner,  it  being  proved  that  in  this  service  such  coun- 
sel was  not  the  business  partner  of  the  executor. 

Executor. — An  Item  for  Commissions  of  an  Executor,  found  in  an 
annual  account  by  him,  will  be  disallowed.  Allowance  of  an  exec- 
utor's statutory  commissions  is  authorized  only  upon  settlement  of 
his  final  account  in  the  administration. 

There  was  a  contest  arising  upon  objections  to  the  settle- 
ment of  the  first  annual  account  of  the  executor.  ]\Ir.  Carroll 
Cook,  as  executor,  filed  his  first  annual  account  on  Septem- 
ber 13,  1886,  and  upon  the  twenty-seventh  day  of  September, 
1886,  written  objections  were  filed  by  Frances  H.  Lowndes 
(a  sister  of  the  above-named  testatrix)  in  her  own  right  as 
an  heir,  and  also  as  guardian  of  the  person  and  estate 
of  Theodora  Lowndes,  a  minor,  a  party  interested  in  the 
estate  of  said  decedent.  After  sustaining,  as  to  one  point, 
a  demurrer  to  tlje  objections  (on  October  8,  1886),  the  hear- 
ing was  had,  extending  over  a  considerable  period  of  time; 
final  argument  being  heard  on  March  24,  1887.  Such  state- 
ment of  the  objections  and  items  of  the  account  referred  to 
in  the  opinion  is  here  made,  as  is  considered  to  be  helpful 
to  a  more  complete  understanding  of  the  judge's  decision. 

As  to  the  first  objections  considered,  respecting  certain 
telegrams,  it  appeared  that  the  executor  was  absent  from 
San  Francisco,  and  telegraphed  certain  instructions  respect- 
ing affairs  of  the  estate.  As  to  the  amount  paid  Josiah  Cook, 
an  attorney  at  Buffalo,  it  appeared  that  at  the  time  of  dece- 


122  Coffey's  Probate  Decisions,  Vol.  1. 

dent's  death  a  certain  suit  began  in  New  York  state  was 
pending  against  her,  and,  in  answer  to  a  telegram  from  rela- 
tives of  decedent's  family,  the  executor  went  on  to  New  York 
in  the  belief  that  some  immediate  necessity  existed  for  the 
sending  of  the  telegram,  which  called  for  his  prompt  appear- 
ance in  New  York.  For  the  contestants  to  the  account,  it 
was  urged  that  no  necessity  of  attention  could  arise  with 
respect  to  that  suit  or  matters  involved  in  it,  because  the  suit 
suspended  by  decedent's  death,  and  could  only  be  revived  by 
instituting  an  administrator  in  New  York,  and  having  him 
substituted  in  the  suit;  furthermore,  the  whole  matter  of  the 
suit  was  beyond  the  jurisdiction  of  this  court,  and  the  forum 
of  this  administration,  and  so  no  part  of  the  executor's  duty. 
The  court  took  the  view,  however,  that  the  executor  should 
be  protected  in  his  action,  it  having  been  taken  in  good 
faith,  although  under  an  erroneous  impression  of  the  law. 

The  items  of  moneys  paid  O'Beirne  and  Jewett,  and  dis- 
allowed by  the  judge,  deserve  attention,  as  they  involve  an 
erroneous  impression  on  the  part  of  the  executor,  not  so 
uncommon,  perhaps,  in  probate  proceedings,  as  might  be 
wished  on  the  part  of  the  court,  who  is  often  left  to  pick 
out  objectionable  items  of  a  like  character  without  any  help 
from  observing  counsel  in  opposing  interests. 

The  item  of  $2  paid  O'Beirne  was  for  making  a  "fair 
copy"  of  the  executor's  account;  the  item  of  $5.50  for  copy- 
ing the  executor's  amendments  to  a  certain  statement  on 
appeal;  and  the  item  of  $16,  for  copying  the  inventory  filed 
in  the  estate  and  a  brief  presented  to  the  judge.  The  item 
of  $34  paid  Jewett  was  for  making  a  copy  of  all  proceedings 
and  papers  of  record  in  the  administration,  which  copy  the 
executor  wanted  for  his  convenience. 

The  rejection  of  these  items  was,  as  stated  in  the  head- 
note,  on  the  ground  that  the  subject  matter  was  within  the 
line  of  the  executor's  duty,  and  so  was  covered  by  the  com- 
pensation, and  commissions  provided  by  law.  If,  e.  g.,  it  was 
part  of  the  executor's  duty  to  file  an  account,  he  could  not 
make  a  charge  for  moneys,  paid  in  engrossing  that;  neither 
could  he  ask  the  estate  to  pay  for  any  copy  thereof  he  should 


Estate  of  Shillaber.  123 

desire  to  keep;  all  these  items  disallowed  are  upon  this  legal 
ground. 

The  facts  as  to  all  other  items  objected  to  are  sufficiently- 
stated  in  the  opinion  of  the  court. 

The  legal  propositions  contained  in  the  second,  fifth,  sixth, 
eleventh  and  twelfth  headnotes  were  previously  announced 
January  7,  1886,  in  a  decision  delivered  in  the  same  estate, 
upon  the  settlement  of  the  executor's  final  account  in  the 
special  administration,  reported  ante  as  Estate  of  Shillaber 
(No.  1). 

William  Hoff  Cook,  for  executor. 

Carroll  Cook,  executor,  in  pro.  per. 

W.  S.  Wood,  for  objections. 

B.  Noyes,  also  for  objections. 

COFFEY,  J.  Objections  sustained  to  items  for  telegrams 
July  6th,  $1.30;  July  6th,  50c.;  July  6th,  75c.;  July  6th, 
50c. ;  July  7th,  85c. ;  July  9th,  35c. ;  July  9th,  25c. 

Fifteen  per  cent  should  be  taken  from  all  premiums  of 
insurance,  it  appearing  from  the  testimony  that  Mr.  Gun- 
ther  was  agent  for  the  estate,  and  that  he  received,  or  is 
about  to  receive,  not  less  than  that  amount  of  premiums  as 
commissions  for  procuring  the  insurance. 

As  to  the  $100  paid  to  Josiah  Cook,  an  attorney  at  Buffalo, 
the  court  repeats  what  it  said  with  reference  to  the  special  ad- 
ministrator in  a  similar  connection,  that,  having  acted  in 
good  faith  in  journeying  to  New  York,  in  response  to  the  tele- 
gram from  Buffalo,  he  should  be  allowed  whatever  proper 
expense  was  incurred  in  that  regard;  and,  whether  or  not  he 
was  mistaken  in  his  view  of  the  law,  the  court  esteems  it  just 
to  allow  this  item. 

Item,  August  31st,  E.  W.  Gunther  $50,  for  preparing 
proofs  of  loss.  I  do  not  think  this  is  a  proper  charge  against 
the  estate,  for  the  reason  that,  if  I  correctly  understand  it, 
it  is  the  duty  of  the  executor  to  make  and  prepare  such 
proofs. 

Items  for  September  25th,  J.  F.  0  'Beirne,  $2 ;  September 
30th,  J.  F.  0 'Beirne,  $5.50;  October  3d,  George  Jewett,  $34; 
December  14th,  J.  F.  0 'Beirne,  $16  should  be  disallowed. 


124  Coffey's  Probate  Decisions,  Vol.  1, 

With  references  to  the  charges  of  commissions  paid  E.  W. 
Gunther  for  collecting  rents,  as  well  as  the  three  items  of 
cash  paid  Mr.  Gunther  on  May  25th,  June  5th  and  12th  for 
serving  notices,  the  court  will  repeat  what  it  said  upon  the 
settlement  of  the  account  of  the  special  administrator: 
"When  in  the  care  and  management  of  a  large  estate  it  is 
shown  to  be  impracticable  to  do  without  clerical  assistance 
to  collect  rents  and  keep  accounts,  the  court  usually  makes 
some  allowance,  but  the  exercise  of  this  discretion  should  be 
guarded. 

"The  executor  is  expected  to  perform  some  labor  and  to 
use  the  utmost  economy  consistent  with  the  protection  of  the 
estate  entrusted  to  his  custody  and  care.  I  have  never 
made  such  allowances  without  rigorous  proof  of  necessity, 
even  when  no  objection  was  interposed;  but  such  allowances 
have  been  made  in  probate  courts  repeatedly  under  such  cir- 
cumstances as  are  suggested  in  this  case. 

"Even  if  proper,  however,  the  charge  is  out  of  proportion 
to  the  result.  I  shall  allow  at  the  rate  of  four  per  cent  up- 
on collections ;  reserving  to  myself  the  right  in  other  accounts 
to  deal  otherwise  with  any  similar  item,  and  acting  now  up- 
on the  evidence  before  me  and  my  present  view  of  duty." 

I  am  inclined  to  think  that  under  all  the  circumstances 
of  this  estate  it  is  reasonable  to  allow  something  for  such 
service,  but,  taking  into  consideration  the  relation  of  the 
recipient  of  tliis  commission  to  the  executor,  three  per  cent 
seems  to  be  sufficient.  The  item  is  reduced  to  that  amount. 
The  charges  for  serving  notices  are  allowed. 

With  reference  to  the  items  embraced  under  ob.jection  4, 
so  much  of  the  charge  as  is  for  executor's  loss  of  time  should 
be  struck  out;  and  as  for  other  expenses,  for  the  trip  to  Los 
Angeles,  while  I  consider  that  executors  should  be  more  fru- 
gal in  disbursing  the  moneys  of  estates,  yet  in  this  case  it 
may  be  that  the  expenditures  were  justified  by  the  circum- 
stances, so  I  shall  disallow  objections  as  to  all  but  what  I 
have  herein  indicated.  . 

As  to  the  charges  of  the  appraisers,  I  am  of  opinion  that 
that  matter  was  adjudicated  by  the  order  allowing  the 
amount,  after  notice  given,  and  that,  apart  from  that,  while 
the  appraisers  should  have  preserved  a  minute  account  of 


Estate  op  Shillaber.  125 

their  services,  day  by  day,  in  this  as  in  all  other  eases,  the 
court  would  feel  compelled  from  the  evidence,  if  it  consid- 
ered the  matter  open  for  inquiry  at  this  stage,  to  allow  the 
items. 

As  to  the  ninth  objection:  "August  25th,  William  Hoff 
Cook,  services  $1,500,"  the  court  repeats  the  language  of  its 
opinion  in  the  matter  of  the  account  of  the  special  adminis- 
trator. "The  executor  is  entitled  to  such  assistance,  even 
when  he  himself  is  an  attorney  and  he  needs  other  counsel. 
In  this  case,  while  he  has  been  actively  participant  in  all 
the  proceedings,  yet  the  counsel  claiming  the  allowance  has 
done,  before  the  court,  work  entitling  him  to  consideration, 
and  his  evidence  is  that  in  this  service  he  is  not  a  business 
l)artner  of  the  executor.  The  executor,  however,  is  a  lawyer 
of  competency  and  experience;  and  he  must  expect,  here- 
after, that  the  court  will  consider  this  fact  in  dealing  with 
his  accounts." 

So  considering  in  the  present  instance,  the  court  reduces 
this  item  by  one-third,  making  it  $1,000. 

With  regard  to  objection  10,  commissions  of  executor. 
This  item  is  unauthorized  by  law. 

"An  administrator's  commissions  should  not  be  allowed 
him  in  the  settlement  of  his  annual  account,  but  when  he 
has  rendered  his  final  account":  Estate  of  Minor,  46  Cal. 
564. 

All  objections  and  exceptions  not  herein  specifically  dealt 
with  are  overruled  and  denied. 


For  Authorities  upon  the  questions  involved  in  the  principal  case, 
see  Estate  of  Shillaber,  ante,  p.  120,  and  note.  That  an  adminis- 
trator may  charge  the  estate  with  the  traveling  expenses  of  his  at- 
torney incurred  in  preserving  the  assets  of  the  estate,  see  Estate  of 
Moore,  72  Cal.  335,  13  Pac.  880;  Estate  of  Byrne,  122  Cal.  260,  54 
Pac.  957. 


126  Coffey  ^s  Probate  Decisions,  Vol,.  1. 


Estate  of  RICHARD  T.  MAXWELL,  Deceased. 

[No.   2,625;    decided   March   10,   1884.] 

Homestead. — The  Probate  Court  must,  upon  proper  application, 
set  apart  to  the  widow  a  homestead,  if  none  has  been  selected  during 
the  lifetime   of  the   decedent.     It  has  no   discretion   in   the   premises. 

Homestead. — It  does  not  Impair  or  Diminish  the  Right  of  the 
Widow  to  have  a  homestead  set  apart  that  there  are  no  minor  chil- 
dren. 

Homestead. — Even  if  the  Testator  Devises  His  Entire  Estate,  which 
was  separate  property,  his  widow  will  still  be  entitled  to  a  homestead. 

Homestead. — If  a  Homestead  is  Selected  from  the  Separate  Property 
of  the  decedent,  the  court  can  set  it  apart  only  for  a  limited  period, 
to  be   designated  in   the  order. 

The  above-named  decedent  left  certain  real  property  in 
Napa  county. 

Two  days  before  his  death  he  entered  into  what  he  sup- 
posed to  be  a  valid  marriage  with  a  woman  who  called  her- 
self Miss  Elena  Donnelly. 

After  his  death  a  sister  of  the  deceased  claimed  that  Miss 
Donnelly  had  a  husband  living  at  the  time  she  entered  into 
the  pretended  marriage  with  decedent,  and  that  in  conse- 
quence such  marriage  was  void.  This  marriage,  however, 
is  immaterial  here,  as  this  fact,  if  it  existed,  had  not  been 
discovered  at  the  time  of  the  application  for  a  homestead. 

On  October  30,  1883,  I\Irs.  Elena  Maxwell,  alleging  her- 
self to  be  the  widow  of  the  decedent,  filed  an  application 
that  a  homestead  be  set  apart  to  her  out  of  this  Napa  prop- 
erty. 

Appraisers  were  appointed  to  select  the  homestead,  which 
they  did,  appraising  it  at  $5,000. 

Previous  to  this  alleged  marriage  with  the  applicant,  the 
decedent  had  been  married  and  divorced.  In  the  matter  of 
this  divorce  the  parties  settled  their  property  rights,  which 
settlement  was  made  a  part  of  the  divorce  decree. 

By  the  terms  of  this  settlement  Mrs.  M.  W.  Maxwell,  the 
divorced  wife,  released  all  claim  to  the  testator's  property, 
and  he  agreed  to  pay  her  $125  per  month  during  her  life, 
and  as  security  for  such  payment  executed  a  mortgage  up- 
on his  Napa  property. 


Estate  of  Maxwell.  127 

The  testator  left  a  will,  in  which  it  was  provided  that  the 
monthly  income  from  the  property,  after  payment  of  this 
charge  of  $125  per  month  upon  it,  should  be  equally  divided 
between  ]\Iiss  Donnelly  and  one  Miss  Margaret  McKenzie. 

On  January  28,  1884,  Miss  McKenzie  filed  a  contest  to  the 
application  for  a  homestead,  alleging  the  above  facts  in  re- 
gard to  the  charge  of  $125  per  month  upon  the  property, 
and  that  she  was  a  legatee,  and  further  that  there  was  no 
issue  of  the  marriage  of  Miss  Donnelly  with  the  testator, 
and  that  the  Napa  property  was  his  separate  estate,  that  the 
applicant  and  decedent  never  lived  upon  the  land  or  oc- 
cupied it  as  a  homestead,  and  that  it  was  of  greater  value 
than  $5,000;  that  the  portion  selected  as  a  homestead  was 
the  most  valuable  portion  of  the  property,  and  that  the  in- 
come from  the  remainder  was  insufficient  to  pay  the  monthly 
allowance  to  Mrs.  M.  W.  Maxwell. 

On  January  19,  1884,  the  executors  also  filed  objections 
to  the  application,  alleging  that  it  was  the  desire  of  the  de- 
cedent that  the  lands  should  not  be  sold. 

On  March  14,  1884,  the  court  made  an  order  setting  apart 
a  homestead  to  the  applicant  during  her  widowhood. 

T.  I.  Bergin,  for  applicant,  Mrs.  Elena  Maxwell. 

Daniel  Rogers,  for  executors,  in  opposition. 

A.  F.  Morrison,  for  Miss  Margaret  McKenzie,  legatee,  also 
in  opposition. 

COFFEY,  J.  There  is  a  proper  petition  before  the  court. 
If  there  were  a  defect  of  signature,  it  was  cured  under  the 
Code  (Code  Civ.  Proc,  sec.  473.)  by  leave  of  the  court. 

The  evidence  of  Appraiser  Cornwell,  a  highly  respecta- 
ble citizen  and  property  owner  of  Napa  county,  entirely 
disinterested  and  perfectly  conversant  with  the  circum- 
stances of  the  Maxwell  Ranch,  is  clear  that  the  land  se- 
lected can  be  segregated  without  detriment  to  the  rest  of  the 
ranch,  or  impairment  of  any  right  in  others  than  the  ap- 
plicant here. 

This  court  must,  upon  proper  application,  set  apart  to 
the  widow  a  homestead,  if  none  has  been  selected  in  life- 
time of  decedent.     The  court  has  no  discretion  to  deny  the 


128  Coffey's  Probate  Decisions,  Vol.  1. 

application :  Estate  of  Ballentine,  45  Cal.  699 ;  Estate  of  Mc- 
Cauley,  50  Cal.  546;  Mawson  v.  Mawson,  50  Cal.  539. 

It  does  not  impair  or  diminish  the  right  of  the  widow 
that  there  be  no  minor  children.  The  homestead  is  to  be 
set  apart  to  the  survivor.  It  is  immaterial  that  the  petition 
be  on  behalf  of  the  widow  alone.  It  could  not  here  be  other- 
wise. Her  status  is  that  of  the  ''surviving  wife"  (Code 
Civ.  Proc,  sec.  1465).  If  a  testator  devised  his  entire  estate 
— his  separate  property — his  widow  would  still  be  entitled 
to  a  homestead:  Estate  of  Moore,  57  Cal.  443. 

If  the  property  set  apart  be  selected  from  the  separate 
property  of  the  decedent,  the  court  can  only  set  it  apart  for 
a  limited  period,  to  be  designated  in  the  order:  Code  Civ. 
Proc,  sec.  1468;  Estate  of  Lord,  2  West  Coast  Rep.  131; 
Lord  V.  Lord ;  65  Cal.  84,  3  Pac.  96. 

It  is  suggested  that  there  is  a  crop  of  wheat  sown  on  the 
land.     The   crop  should  be  reserved. 

Application  granted. 


The  Principal  Case  is  followed  in  Estate  of  Tate,  post,  p.  217. 


Estate  and  Guardianship  of  WM.  A.  WHITE,  Minor. 
[No.  3,411;  decided  September  3,  1884.] 

Marital  Obligation — Filial  Devotion. — A  husband  should  not  allow 
the  duty  he  owes  to  his  wife  to  be  overcome  by  his  love  for  his 
parents.  Where  one's  marital  obligation  comes  into  conflict  with  his 
filial   devotion,  the  latter  should  give   way  to   the  former. 

Guardianship. — Assuming  that  a  Father's  Right  to  the  Custody  of 
his  child  revives  upon  the  death  of  the  mother,  who  had  been 
awarded  the  custody  under  a  divorce  decree,  yet  it  must  be  shown 
that  the  minor's  interest  will  be  conserved  by  recognizing  the  father's 
right. 

Guardianship. — Where  a  Husband  Deserts  His  Wife,  who  is  left 
to  care  and  provide  for  their  infant  child,  this  will  be  considered  as 
an  abandonment  of  the  child,  upon  the  father's  application  for  guar- 
dianship after  the  mother's  death. 

Guardianship. — Reluctant  as  the  Court  Always  is  to  Interfere  with 
a  Father's  natural  right  to  his  child's  custody,  it  will  do  so  where 
the  child's  interest   demands. 


Guardianship  of  White.  129 

Guardianship. — In  the  Case  at  Bar  the  Court  Refused  Guardian- 
ship of  a  minor  of  divorced  parents  to  its  father,  applying  after  the 
death  of  the  mother,  and  granted  letters  to  the  maternal  grandmother 
of  the  minor,  for  the  following  reasons:  The  child  had  been  awarded 
to  the  mother  by  a  divorce  decree  against  the  father;  the  father 
never  provided  for  the  child,  except  when  compelled  by  judicial  pro- 
cess; he  never  showed  any  interest  in  the  child  from  the  time  of 
his  desertion  of  the  mother,  and  by  his  continued  course  of  conduct 
manifested  a  lack  of  paternal  instinct;  the  maternal  grandmother 
had  received  the  mother  and  child  when  deserted  by  the  father,  and 
had  ever  afterward  given  them  shelter  and  assistance,  and  she  was 
the  nominee  of  the  mother,  by  the  latter 's  dying  request. 

H.  C.  Firebaugh,  for  first  application. 
K.  M.  Smith,  for  second  application. 

COFFEY,  J.  We  have  here  two  applications  for  letters 
of  guardianship  of  the  person  of  Wm.  C.  A.  White,  a  minor. 
The  first  application  was  filed  on  behalf  of  Mrs.  Ellen 
Doran,  the  maternal  grandmother  of  the  minor;  the  second 
by  Wm.  F.  White,  the  father  of  the  minor,  who  was  mar- 
ried to  the  minor's  mother  April  13,  1879,  separated  from 
her  July,  1880,  four  months  after  the  birth  of  the  child, 
which  occurred  April  2,  1880;  subsequent  to  the  separation, 
a  divorce  was  obtained  by  the  mother  of  the  minor  on  the 
ground  of  the  father's  desertion  of  her;  child  awarded  to 
mother.  The  mother  died  May  22,  1884,  prior  to  which  time 
the  father  married  again. 

The  father  of  the  minor  appears  to  be  a  respectable 
young  man,  engaged  in  a  responsible  position  for  many 
years,  earning  for  about  six  years  of  that  time  $100  per 
month,  a  salary  sufficient  for  the  maintenance  of  his  small 
family  in  comfort.  Between  the  time  of  the  separation, 
July,  1880,  and  October,  1882,  and  while  Mr.  White  was  in 
possession  of  abundant  means,  he  contributed  nothing  to 
the  support  of  his  child,  and  then  (October  9,  1882)  only 
under  judicial  process  and  constraint  of  court.  It  appears 
in  evidence  that,  when  Mr.  White  married,  he  took  his  wife 
to  his  mother's  house,  and  owing  to  inability  to  live  amicably 
with  her  mother  in  law,  the  wife  left  there  and  went  with 
her  child  of  four  months  to  her  own  mother's  home,  where 
she  remained  until  the  moment  of  her  death,  May  22,  1884. 

Prob.  Dec,  Vol.  I — 9 


130  Coffey's  Probate  Decisions,  Vol.  1. 

The  minor's  mother  supported  herself  and  child  by  prose- 
cuting the  vocation  of  bookbinder,  and  was  expert  and  in- 
dustrious always,  except  when  her  health  compelled  her  to 
suspend  work,  and  sometimes  even  when  in  ill  health.  Ac- 
cording to  all  accounts  in  evidence,  she  was  a  most  exem- 
plary woman,  a  good  wife,  a  dutiful  daughter  and  an 
affectionate  mother.  She  offered  to  live  with  her  husband 
and  to  provide  for  her  mother  in  law,  but  her  husband 
''wouldn't  have  it."  The  husband  seemed  to  care  more  for 
his  mother  than  for  his  wife. 

While  his  filial  devotion  is  not  to  be  censured  in  itself, 
when  it  came  into  conflict  with  his  marital  duty  he  should 
have  observed  the  canonical  command  and  the  Scriptural 
injunction,  and,  if  the  occasion  demanded,  to  leave  his  father 
and  mother,  and  all  the  rest  of  his  kin.  and  to  "cleave  unto 
his  wife":  Eph.  v.,  31.  His  regard  for  his  mother  should 
not  have  overcome  his  obligation  to  his  wife.  He  allowed 
his  wife  to  go  away  elsewhere  for  shelter  with  a  four 
months'  old  infant,  and  then  for  over  two  years,  in  more 
or  less  infirm  health,  to  labor  arduously  at  a  binding  busi- 
ness, only  yielding  pecuniary  aid  when  he  was  coerced  to 
comply  with  the  order  of  the  court  (awarding  to  her  the 
custody  of  the  child,  and  $15  per  month  alimony),  under  the 
fear  of  punishment  for  contempt  of  court.  Whatever  the 
extraneous  influence  operating  upon  his  mind,  he  showed  no 
interest  in  nor  affection  for  his  wife  and  child,  from  the  time 
of  separation,  until  after  the  death  of  his  wife;  and  then  he 
claims  custody  of  the  child  as  the  father,  and,  therefore, 
naturally  entitled  to  possession.  By  decree  of  court  he  had 
been  deprived  of  that  possession ;  he  claims  the  death  of  the 
mother  revived  his  right.  Assuming  the  accuracy  of  his  at- 
titude, it  should  be  shown  that  the  interest  of  the  minor 
will  be  conserved  by  the  recognitioh  of  the  right  of  the 
father.  In  this  case  it  appears  that  the  child  is  in  the  same 
custody  that  he  was  placed  in  by  the  mother  at  the  age  of 
four  months;  that  the  child  has  been  tenderly  nurtured,  and 
is  and  has  been  treated  with  the  most  affectionate  care  by 
the  petitioner,  Mrs.  Ellen  Doran,  the  maternal  grandmother, 
a   widow   with    a   family    of   grown    children,    all    of   whom. 


Guardianship  op  White.  131 

appear  to  be  respectable  persons  in  comfortable  circum- 
stances, and  greatly  devoted  to  the  child ;  that  when  the 
mother  died,  and  while  realizing  her  approaching  end,  she 
manifested  solicitude  as  to  care  of  child,  and  expressed  a 
desire  that  her  mother  (Mrs.  Ellen  Doran)  should  retain 
the  child ;  that  practically  her  mother  has  cared  for  the  child 
for  years,  nursed  him  and  his  mother,  the  deceased  Mrs. 
White,  when  both  were  ill,  and  when  the  child's  life  was 
in  danger,  procured  competent  medical  attendance,  during 
which  time  the  father,  W.  F.  White,  although  cognizant 
of  the  situation,  never  went  to  see  the  mother  or  the  minor, 
and  made  use  of  expressions  indicating  (to  employ  mild 
terms)  an  absence  of  sensibility  and  sympathy  in  his  rela- 
tions to  the  mother  and  their  child.  Practically,  when  Mr. 
White  allowed  his  wife  to  go  forth  from  his  protection,  in 
delicate  health,  with  her  infant,  also  in  delicate  health,  and 
to  seek  her  mother's  care,  which  was  granted  to  her,  he 
abandoned  his  child  (as  the  court  had  decreed  he  deserted 
his  wife),  and  the  grandmother,  Mrs.  Ellen  Doran,  gave  the 
child  a  good  home,  and  has  ever  since  that  time  treated 
the  infant  as  if  she  were  the  mother.  The  father's  natural 
right  must  bend  to  the  interest  of  the  child,  as  the  court 
discerns  that  interest.  Reluctant,  as  the  court  always  is,  to 
interfere  with  such  natural  right,  the  law  and  the  evidence 
make  clear  the  duty  in  this  interest.  The  original  award  of 
the  custody  of  the  child  to  the  mother;  the  dying  request  of 
that  mother  in  favor  of  Mrs.  Doran ;  the  long-continued 
indifference  of  the  father,  and  his  contumacy  in  complying 
with  the  orders  of  the  divorce  court;  his  expressions  before 
the  death  and  during  the  illness  of  the  wife  (before  and 
after  divorce)  ;  his  continued  course  of  conduct  manifesting 
a  lack  of  the  paternal  instinct — all  of  these  established  cir- 
cumstances warrant  the  court  in  granting  the  prayer  of 
the  maternal  grandmother,  Mrs.  Ellen  Doran,  subject  to 
such  limitations  in  favor  of  the  father's  visiting  the  child 
as  may  be  consistent  with  its  secure  custody  and  welfare. 


While  Parents  are  Presumed  Competent  to  have  Charge  of  Their 
Child,  and  the  j)arcntal  righl  will  not  lightly  be  disregarded,  never- 
theless the   court,  in   appointing  a  guardian,   is   guided   primarily  by 


132  Coffey's  Probate  Decisions,  Vol.  1. 

what  appears  to  be  for  the  best  interests  of  the  child,  and  may  award 
it  to  a  third  person  whenever  its  well-being  demands  such  a  course: 
See  2  Eoss  on  Probate  Law  and  Practice,  950;  Guardianship  of  Dan- 
neker,  ante,  p.  3,  and  note. 


Estate  of  NICHOLAS  TREWEEK,  Deceased. 

[No.  2,159;  decided  November  11,  1885.] 

Executor — Failure  to  Comply  •with  Decree  of  Distribution — An  exec- 
utor who  refuses  to  make  payment  to  distributees  in  accordance 
with  the  decree  of  distribution  is  punishable  for  contempt,  and  he 
cannot  plead  inability  to  pay,  when  his  account  on  file  shows  the 
contrary. 

Nicholas  Treweek  died  in  San  Francisco  on  December  30, 
1882,  leaving  an  olographic  will  dated  April  2,  1882,  in 
which  he  made  his  brothers,  Francis,  John  and  George  Tre- 
week, and  his  sisters,  Jane  Treweek  and  Elizabeth  West, 
his  legatees  and  devisees.     The  same  persons  were  his  heirs. 

To  his  brother  Francis  he  left  the  sum  of  $5,000,  and  to 
each  of  his  other  brothers  and  sisters  $2,500,  making  in  all 
$15,000.  He  also  made  all  his  brothers  and  sisters  his 
residuary  legatees  and  devisees,  share  and  share  alike. 

In  this  will  the  testator  also  named  Arthur  W.  Bowman 
executor. 

On  January  6,  1883,  Mr.  Bowman  filed  the  will,  together 
with  a  petition  for  its  probate,  and  for  letters  testamentary. 

The  petitioner  stated  the  probable  value  and  character 
of  the  property  of  the  estate  to  be  about  the  sum  of  $15,000 
in  money  in  his  hands,  and  certain  stocks  and  real  property. 

On  January  24,  1883,  the  will  was  duly  admitted  to  pro- 
bate, and  the  petitioner  appointed  executor,  and  letters  were 
issued  to  him  on  the  29th  of  the  same  month. 

An  inventory  and  appraisement  was  filed  in  the  estate 
on  September  4,  1883,  in  which  the  executor  stated  that 
part  of  the  estate  consisted  of  about  the  sum  of  $16,775.23 
in  money  in  his  hands. 


Estate  of  Treweek.  133 

On  January  3,  1884,  the  executor  filed  his  final  account, 
and  a  petition  for  final  distribution  in  accordance  with  the 
will. 

In  this  account  he  stated  the  balance  of  moneys  in  his 
hands  to  be  $15,000. 

The  account  was  settled,  and  decree  of  distribution  made 
as  prayed  for  on  January  15,   1884. 

On  June  15,  1885,  Lovell  Squire,  Jr.,  filed  a  verified 
petition  reciting  the  facts  above  stated,  and  also  alleging 
that  he  was  the  attorney  in  fact  of  the  distributees;  that 
he  had,  as  such,  made  demand  upon  the  executor  for  the 
sum  of  $15,000,  in  accordance  with  the  decree  of  distribu- 
tion, and  that  he  had  refused  to  pay,  giving  as  his  only 
ground  of  refusal  that  he  did  not  have  the  money;  Mr. 
Squire  therefore  prayed  that  an  order  be  made  requiring 
the  executor  to  show  cause  why  he  should  not  pay  the 
money,  or  be  punished  for  contempt  for  his  failure  to  do 
so. 

The  order  to  show  cause  was  made,  and  citation  issued 
thereon. 

On  July  22,  1885,  the  executor  filed  his  answer  to  this 
petition.  He  stated  in  his  answer  that  at  the  time  of  the 
testator's  death  he.  Bowman,  owed  the  sum  of  $15,000.  to 
the  testator  for  moneys  loaned ;  that  in  his  petition  for  pro- 
bate he  alluded  to  said  moneys  as  moneys  in  his  hands,  but 
as  a  matter  of  fact  there  were  no  moneys  of  the  estate  in  his 
hands,  although  he  was  at  that  time  amply  able  to  pay  the 
debt;  that  after  his  appointment  as  executor,  the  matter 
remained  in  precisely  the  same  condition,  to-wit :  as  a  debt, 
he  having  made  no  segregation  of  his  moneys,  or  set  any 
apart  to  the  estate  in  payment  of  the  debt;  that  at  the  time 
of  the  distribution  the  distributees  were  absent  from  the  state 
of  California,  and  respondent  did  not  know  that  they  had 
an  agent  in  this  state,  and  if  they  had  been  here  he  would 
have  paid  them  out  of  his  general  resources;  that  on  October 
27,  1884,  a  petition  was  filed  in  the  superior  court  of  Ala- 
meda county  by  certain  of  his  creditors,  to  have  him 
declared  an  insolvent,  and  that  on  November  10,  1884,  he 
was  adjudicated  an  insolvent,  and  one  Wm.  Thomas  was 
appointed  his  assignee;  that  his  estate  was  worth   at  least 


134  Coffey's  Probate  Decisions,  Vol.  1. 

$100,000,  and  the  insolvency  proceedings  were  still  pending; 
and  since  the  filing  of  the  petition  in  insolvency  he  had  no 
moneys  in  his  hands,  and  that  his  whole  estate  was  in  the 
hands  of  his  assignee;  that  it  was  impossible  for  him,  re- 
spondent, to  comply  with  the  decree  of  distribution,  and 
that  this  impossibility  was  the  only  reason  for  his  failure 
to  comply,  and  he  intended  no  contempt  of  or  disrespect  to 
the  court. 

To  this  answer  a  general  demurrer  was  filed  by  the 
petitioner,  which  was  sustained  on  November  11,  1885,  with 
leave  to  respondent  to  amend  within  ten  days  thereafter. 

Respondent  having  declined  and  failed  to  amend,  he  was 
committed  for  contempt  on  November  30,  1885. 

Columbus  Bartlett,  with  whom  was  W.  E.  Lindenberger, 
for  demurrant. 

E.  W.  McGraw,  for  respondent. 

COFFEY,  J.  The  executor  is  an  officer  of  the  court, 
and  as  such  responsible  to  the  court  for  failure  to  comply 
with  the  terms  of  the  decree  of  distribution,  which  was  final 
and  conclusive.  It  was  his  duty  to  make  payment  as  there- 
in directed:  Code  Civ.  Proc.  1209,  1666,  1721,  1962;  Estate 
of  Taylor,  Myr.  160 ;  Estate  of  Smith,  53  Cal.  208 ;  Estate  of 
Cohn,  55  Cal.  193;  Estate  of  Lacoste,  Myr.  68. 

The  other  authorities  cited  and  considered  do  not  affect 
the  adjudications  in  this  court  and  state,  which  seem  to  me 
conclusive  against  respondent.  Demurrer  sustained,  ten 
days  to  amend. 


When  a  Decree  of  Distribution  is  Made,  it  becomes  the  duty  of  the 
executor  or  administrator  to  deliver  tlie  estate  to  the  parties  desig- 
nated by  the  court:  McCabe  v.  Healy,  138  Cal.  81,  90,  70  Pac.  1008. 
No  special  or  express  order  to  that  effect  is  authorized  or  required. 
Upon  the  entry  of  the  decree,  the  law  fixes  this  duty  on  him.  He 
still  remains  an  officer  of  the  court,  subject  to  its  jurisdiction,  until 
his  final  discharge;  and  hence  the  court  has  authority,  if  necessary, 
to  compel  him,  by  punishment  as  for  a  contempt,  to  make  a  delivery 
to  the  distributees  of  their  respective  shares:  Ex  parte  Smith,  53 
Cal.  204;  Wheeler  v.  Bolton,  54  Cal.  302;  Estate  of  Kennedy,  129  Cal. 
384,  62  Pac.  64;  Estate  of  Cohn,  55  Cal.  193;  McLaughlin  v.  Barnes, 
12  Wash.  373,  41  Pac.  62.  And  he  can  take  no  appeal  from  an  order 
adjudging  him  in  contempt,  and  committing  him  to  jail  until  he  com- 
plies with  the  decree:  Estate  of  Wittmeier,  118  Cal.  255,  50  Pac.  393. 


Estate  of  Maxwell.  135 


Estate  of  RICHARD  T.  MAXWELL,  Deceased   (No.  2). 

[No.  2,625;  decided  December  1,  1884.     Affirmed,  74  Cal.  384,  16  Pac. 

206.] 

Probate  Court — Jurisdiction. — The  Superior  Court,  sitting  in  pro- 
bate, has  no  greater  jurisdiction  tban  the  probate  court  which  it  suc- 
ceeds. 

Probate  Court — Jurisdiction. — The  Superior  Court,  while  engaged  in 
the  exercise  of  probate  jurisdiction,  cannot  entertain  a  cause  of  ac- 
tion to  obtain  relief  upon  the  ground  of  fraud,  such  as  a  petition  to 
disregard  and  declare  void  a  devise  alleged  to  have  been  procured 
through  fraud,  and  to  make  distribution  to  the  heirs. 

Richard  Tybout  Maxwell  died  in  San  Francisco  on  June 
29,  1883. 

He  left  an  olographic  will,  bearing  date  July  23,  1882. 
Daniel  Rogers  and  Charles  Ashton  were  therein  named  as 
executors,  and  upon  petition  filed  on  July  5,  1883,  and  due 
proceedings  had,  the  will  was  admitted  to  probate  and  the 
executors  named  appointed,  and  letters  testamentary  issued 
to  them  on  July  17,  1883. 

In  the  petition  for  probate  the  executors  stated  that  on" 
June  27,  1883,  the  testator  intermarried  with  Miss  Nellie 
Donnelly,  who  was  the  principal  devisee  in  the  will. 

On  November  5,  1884,  the  executors  filed  their  final  ac- 
count and  a  petition  for  distribution,  in  accordance  with 
the  terms  of  the  will. 

On  November  13,  1884,  Mrs.  Elizabeth  C.  Tybout,  sister 
of  deceased,  filed  certain  exceptions  to  the  petition  of  the 
executors  for  distribution,  and  asked  that  distribution  be 
made  to  her  as  sole  heir  at  law. 

She  alleged  that  all  provisions  in  the  will  in  favor  of  Miss 
Donnelly  were  made  by  the  testator  upon  Miss  Donnelly's 
false  and  fraudulent  representations,  knowingly  made  to 
the  testator,  that  she  was  an  unmarried  woman  and  capable 
of  entering  into  a  valid  contract  of  marriage  with  him,  and 
in  view  of  such  marriage  being  entered  into. 

That  as  a  matter  of  fact,  however,  the  so-called  Miss 
Donnelly  was,  on  August  31,  1880,  married  in  Alameda 
countv  to  one  Charles  H.  Keane,  and  is  still  his  lawful  wife. 


136  Coffey's  Probate  Decisions,  Vol.  1. 

That  the  testator  never  knew  this,  and,  believing  the  so- 
called  Miss  Donnelly's  false  and  fraudulent  representa- 
tions, made  the  provisions  in  her  favor;  and  that  on  June 
27,  '1883,  she  entered  into  a  pretended  marriage  with  the 
testator,  but  that  she  was  then  the  wife  of  Charles  H.  Keane, 
and  well  knew  it,  and  that  her  said  pretended  marriage  with 
testator  was  void. 

That  up  to  the  time  of  his  death  the  testator  did  not 
know  of  the  fraud  that  had  been  practiced  upon  him,  and 
believed  Miss  Donnelly  to  be  his  wife,  and  that  neither 
Mrs.  Tybout  nor  the  executors  had  any  knowledge  or  in- 
formation of  the  marriage  of  the  so-called  Miss  Donnelly 
to  Keane,  nor  of  the  fraudulent  representations,  prior  to 
September  8,  1884,  more  than  a  year  after  the  probate  of 
the  will. 

That  the  marriage  with  Miss  Donnelly  was  the  testator's 
sole  motive  in  making  her  his  devisee. 

Mrs.  Tybout  therefore  asked  that  the  devise  to  Miss  Don- 
nelly be  declared  void,  and  that  she,  Mrs.  Tybout,  have  dis- 
tribution as  sole  heir  at  law  of  decedent. 

To  these  exceptions  and  petition  Miss  Donnelly  filed  a 
demurrer  on  November  26,  1884. 

The  principal  grounds  of  demurrer  were,  that  more  than 
one  year  had  elapsed  since  the  probate  of  the  will,  and  that 
the  time  for  attacking  such  probate  and  said  will  on  any 
ground  had  long  since  elapsed ;  also  that  the  wilL  cannot  be 
set  aside  in  the  mode  attempted;  further,  that  the  facts 
stated  are  insufficient  to  authorize  the  court,  under  any  cir- 
cumstances, to  disregard  or  refuse  to  the  terms  of  the  will, 
or  to  the  order  admitting  it  to  probate,  full  force  and  effect, 
and  that  they  are  no  longer  open  to  attack  in  any  proceed- 
ing. 

This  demurrer  was  sustained  on  December  1,  1884. 

McAllister  &  Bergin,  for  the  demurrant,  M.  E.  Donnelly 

Joseph  R.  Brandon,  opposed,  for  Mrs.  Elizabeth  C.  Ty- 
bout. 

COFFEY,  J.  Counsel  for  the  petitioners,  excepting  to 
the  application  for  distribution  in  this  estate,  claims  that 
the   "exceptions"    constituting    a    cause   of   action   or   pro- 


Matter  of  Ingram.  137 

ceeding  under  section  338,  Code  of  Civil  Procedure,  to  obtain 
relief  on  the  ground  of  fraud  or  mistake,  and  not  a  pro- 
ceeding collaterally  or  directly  to  assail  the  probate  of  the 
will,  are  at  this  time  and  in  this  manner  cognizable  by  this 
court;  and  he  asks  this  court,  while  engaged  in  exercising 
probate  jurisdiction,  to  declare  a  trust  in  Miss  Donnelly  for 
the  benefit  of  the  Tybout  heirs,  under  section  2224  of  the 
Civil  Code,  and  under  the  general  jurisdiction  vested  in  the 
superior  court  by  the  constitution  and  codes. 

The  superior  court,  sitting  in  probate  matters,  has  no 
greater  jurisdiction  than  the  probate  court  which  it  suc- 
ceeds: Estate  of  Hudson,  63  Cal.  454;  Dean  v.  Superior 
Court,  63  Cal.  473. 

It  follows  that  the  subject  matter  of  the  "exceptions" 
and  petition  of  the  Tybout  heirs  is  not  entertainable  by 
this  court  while  it  is  engaged  in  the  exercise  of  probate 
jurisdiction ;  it  does  not  constitute  a  cause  of  action  that 
can  here  and  in  the  manner  presented  be  tried  by  the 
court  which  can  only  consider  the  probate  law  and  prac- 
tice. "Cases  in  equity,"  "cases  at  law,"  "matters  of  pro- 
bate," are  all  separately  described  in  the  constitution  (ar- 
ticle 6,  section  5),  and  while  the  court  is  engaged  in  the 
consideration  of  a  case  belonging  to  one  of  these  classes  it 
cannot,  in  the  same  matter,  hear  and  determine  what  is  es- 
sentially a  case  of  another  class  mentioned  in  the  constitu- 
tion. The  supreme  court  seems  to  have  so  settled  the  law; 
and  it  is  the  duty  of  this  court  to  decide  accordingly. 


Matter  of  Mrs.  HANNAH  W.  INGRAIM. 
[Decided   December   1,   1884.] 

Insanity. — In  Order  to  Commit  a  Person  to  an  Asylum  for  the  in- 
sane, the  court  must  be  satisfied,  upon  examination,  pursuant  to  sec- 
tion 258,  Civil  Code,  that  such  person  is  of  unsound  mind,  and  unfit 
to  be  at  large.  The  provisions  of  the  codes  as  to  such  examination 
summarized. 

Insanity. — There  are  no  "Commissioners  of  Insanity."  Physicians 
are  merely  summoned  to  hear  the  testimony,  and  to  make  a  personal 


138  Coffey's  Probate  Decisions,  Vol.  1. 

examination  of  the  alleged  insane  person;  and,  if  they  believe  him 
to  be  dangerously  insane,  they  make  a  certificate  of  certain  facts, 
whereupon  it  is  reserved  to  the  judge,  upon  whom  rests  the  responsi- 
bility, to  adjudicate  upon  the  charge. 

Insanity. — Although    a    Person    is    Subject    to    Certain    Delusions, 

where  the  court  is  not  satisfied  that  he  is  "so  far  disordered  in  mind 
as  to  endanger  health,  person  or  property,"  or  "unfit  to  be  at  large," 
it  is  bound  to  give  him  the  benefit  of  such  reasonable  doubt  as  it  en- 
tertains upon  the  whole  charge. 

Application  to  confine  Mrs.  Hannah  W.  Ingram,  an  al- 
leged insane  person,  in  the  insane  asylum. 

COFFEY,  J.  Before  the  court  can  order  the  commit- 
ment of  any  person  to  an  asylum  for  the  insane  it  must 
be  satisfied,  upon  examination  in  open  court,  and  in  the 
presence  of  such  person,  from  the  testimony  of  two  repu- 
table physicians,  that  such  person  is  of  unsound  mind,  and 
unfit  to  be  at  large :  Civ.  Code,  sec.  258. 

Whenever  it  appears  by  affidavit,  to  the  satisfaction  of 
a  magistrate  of  the  county,  that  any  person  within  the 
county  is  so  far  disordered  in  his  mind  as  to  endanger 
health,  person  or  property,  he  must  issue  and  deliver  to 
some  peace  officer  for  service  a  warrant,  directing  that  such 
person  be  arrested  and  taken  before  any  judge  of  a  court 
of  record  within  the  county  for  examination. 

Subpoenas  must  issue  thereupon  to  two  or  more  wit- 
nesses best  acquainted  with  such  person  to  appear  and  tes- 
tify before  the  judge  at  such  examination;  the  judge  must 
also  subpoena  at  least  two  graduates  of  medicine  to  appear 
and  attend  such  examination ;  and  all  such  persons  so 
subpoenaed  must  appear  and  answer  all  pertinent  questions; 
the  physicians  so  called  in  by  process  of  subpoena  must  hear 
such  testimony  and  must  make  a  personal  examination  of 
the  alleged  insane  person,  and  must  make  a  certificate  of 
their  conclusions;  and  then  the  judge,  after  such  examina- 
tion and  certificate  made,  if  he  believes  the  person  accused 
to  be  so  far  disordered  in  mind  as  to  endanger  health,  per- 
son or  property,  must  make  an  order  that  such  person  be 
confined  in  the  asylum.  A  record  of  all  such  proceedings 
must  be  kept  by  the  county  clerk.     The  physicians  attend- 


Matter  of  Ingram.  139 

ing  the  examination  of  "an  insane  person"  are  allowed  a 
fee,  to  be  paid  by  the  county. 

The  foregoing  is  a  summary  of  all  the  pertinent  provi- 
sions of  the  codes,  with  reference  to  this  character  of  cases : 
Pol.  Code,  2210-2222. 

An  impression  seems  to  prevail  that  there  are  certain 
"Commissioners  of  Insanity"  who  pass  upon  these  cases. 
An  examination  of  the  codes  will  make  manifest  the  error 
of  this  impression.  The  so-called  "commissioners"  are 
simply  physicians,  "graduates  of  medicine,"  in  good  stand- 
ing, who  are  summoned  in  the  same  manner  as  other  wit- 
nesses to  attend  the  hearing;  but  it  is  reserved  to  the  judge 
of  the  court  to  find  the  fact  and  to  adjudicate  thereupon. 
Upon  the  judge  or  the  court  the  law  casts  the  responsibility, 
and  to  discharge  it  faithfully  is  not  always  a  light  duty;  in 
this  case  it  has  been  more  than  ordinarily  onerous,  from  the 
peculiar  circumstances,  the  character  of  the  evidence,  and 
the  conduct  pending  the  examination  and  in  view  of  the 
court  of  the  parties  immediately  connected  with  the  subject 
matter  of  the  investigation. 

As  a  result  of  the  examination,  and  the  subsequent  re- 
flections thereupon,  the  court  is  convinced  that  Mrs.  Ingram 
is  the  victim  of  a  delusion  as  to  the  relations  of  Miss  Pratt 
with  her  husband,  and  has,  while  possessed  of  that  delusion, 
subjected  that  lady  and  her  family  to  great  annoyance  and 
indignity ;  but  the  court  is  in  doubt  as  to  the  dangerous 
nature  of  the  delusion,  is  not  fully  persuaded  that  the  ac- 
cused person  is  "so  far  disordered  in  mind  as  to  endanger 
health,  person  or  property."  or  is  "unfit  to  be  at  large," 
and  the  court  is  bound  to  give  the  accused  person  the  benefit 
of  such  reasonable  doubt  as  it  entertains  upon  the  whole 
charge.  This  is  the  conclusion  from  a  full  investigation  and 
mature  deliberation ;  and,  accordingly,  the  proceeding  against 
Mrs.  Hannah  W.  Ingram  is  dismissed. 


140  Coffey's  Probate  Decisions,  Vol.  1. 


Estate  of  ELLEN  LYNCH,  Deceased. 

[No.    3,079;    decided    June    30,    1884.] 

Partial  Distribution — Time  for  Making. — An  application  for  partial 
distribution  of  a  decedent's  estate  in  course  of  administration  may- 
be made  at  any  time  after  the  period  of  administration  mentioned  in 
the  statute,  upon  allegations  showing  the  existence  of  the  conditions 
and    circumstances    required    by    the    statute. 

Partial  Distribution— Time  for  Making.— The  rule  prescribed  by  the 
statute,  as  to  whom  and  under  what  circumstances  a  partial  distrib- 
ution of  a  decedent's  estate  may  be  had,  is  the  same  whether  the 
decedent  left  a  will,  or  died  intestate.  And  a  petition  for  the  partial 
distribution  of  a  testate's  estate  is  not  premature  merely  because  the 
year  given  by  the  statute,  within  which  a  contest  to  the  probate  of 
the  decedent's  will  may  be  filed,  has  not  elapsed. 

The  opinion  of  the  court  in  this  case  was  rendered  upon 
objections  made  to  two  separate  petitions  for  distribution 
after  the  lapse  of  four  months  of  administration — "partial 
distribution,"  as  usually  designated.  The  first  filed  petition 
was  that  of  Margaret  Daly,  presented  June  6,  1884,  showing 
that  petitioner  was  a  legatee  under  decedent's  will,  which 
had  been  duly  proved,  to  the  extent  of  $1,000,  and  certain 
specified  household  furniture;  that  four  months  had  elapsed 
since  the  issuance  of  letters  testamentary  to  John  D.  Cough- 
lin  and  Daniel  J.  Coughlin,  the  executors  named  in  the  will, 
who  qualified  May  24,  1884,  and  prayed  for  distribution  of 
the  legacies  upon  giving  the  bond  required  by  the  statute. 
The  second  petition  was  filed  June  7,  1884,  on  behalf  of 
and  subscribed  by  (1)  Catherine  Riley,  (2)  Margaret  Ware, 
(3)  Margaret  Weston,  (4)  Hannah  Sullivan,  (5)  Adina 
Gertrude  Ware,  (6)  Frances  Ellen  Ware,  (7)  Henry  Ware 
(8)  Mary  Cunningham,  (9)  Miss  Lizzie  Armor,  Superioress 
of  the  Convent  of  the  Holy  Family,  and  (10)  Daniel  J. 
Coughlin ;  and  set  forth  the  same  facts  respecting  the  ad- 
ministration as  in  the  petition  of  Margaret  Daly,  first  above 
mentioned.  No  attorney's  name  appeared  upon  either  of 
the  petitions,  but  it  is  recited  by  the  record  that  Selden  S. 
Wright,  as  the  appointee  of  the  court,  appeared  for  them. 

The  two  petitions  came  on  regularly  for  hearing  on  the 
twentieth    day    of   June,    1884,    and    a    decree    of   "partial 


Estate  of  Lynch.  141 

distribution"  was  made  according  to  the  prayers  of  the 
petitioners,  under  date  of  June  20,  1884,  and  was  filed  on 
the  twenty-fourth  day  of  June,  1884. 

The  record  shows  that  Selden  S.  Wright,  was  appointed 
by  order  of  June  6,  1884,  as  attorney  to  represent  in  the 
administration  all  unrepresented  heirs  and  legatees,  naming 
the  parties  interested,  so  far  as  known,  to  be  Mary  Riley, 
Ellen  Riley,  Anastasia  Riley,  Johanna  Riley,  David  Riley, 
Henry  Riley,  Michael  Riley  and  Patrick  Riley.  All  of 
these  parties  named  were  legatees  and  also  nephews  and 
nieces  respectively,  and  heirs  of  deceased;  and  resided  at  St. 
Peters,  Cape  Breton,  Nova  Scotia.  None  of  them  were  peti- 
tioners for  or  participants  in  the  ' '  partial  distribution. ' ' 

Selden  S.  Wright,  for  petitioners. 

E.  E.  Haft,  contra,  for  executors. 

COFFEY,  J.  It  is  suggested,  on  behalf  of  executors  that 
the  petition  for  partial  distribution  is  premature;  that  a 
year  (the  time  to  contest  the  validity  of  the  will)  should 
elapse  before  the  application. 

Under  the  authority  of  the  Estate  of  Pritchett,  51  Cal. 
568,  the  petition  is  not  prematurely  preferred,  the  essential 
facts  and  the  principle  of  this  matter  corresponding  to  the 
facts  and  principle  in  that  case.     Petition  granted. 


The  Rule  that  the  Final  Distribution  of  an  estate  may  be  had  upon 
the  settlement  of  the  final  account  of  the  executor,  or  at  any  subsequent 
time  (Estate  of  Thayer,  1  Cal.  App.  104,  81  Pac.  658;  McAdoo  v. 
Sayre,  145  Cal.  344,  78  Pac.  874),  was  invoked  in  Ee  Pritchett,  51 
Cal.  568,  52  Cal.  94,  although  the  time  for  contesting  the  will  had 
not  yet  expired. 


142  Coffey's  Probate  Decisions,  Vol.  1. 


Estate  and  Guardianship  of  SUSANNA  ZIMMER,  Minor. 

[No.  2,860;  decided  December  22,  1883.] 

Guardian — Nomination  by  Minor. — A  minor,  aged  sixteen  years, 
who  is  intelligent  and  of  fair  education,  is  legally  competent  to  nomi- 
nate her  own  guardian,  subject  to  the  court 's  approval. 

Guardian — Nomination  by  Minor. — Although  an  intelligent  minor 
over  fourteen  years  of  age  is  competent  to  nominate  its  own  guardian, 
and  its  intelligent  preference  for  a  guardian  must  be  considered,  yet 
the  court  must  be  guided  in  its  determination  by  what  appears  to  be 
for  the  child 's  best  interests,  as  to  its  temporal,  mental  and  moral 
welfare. 

Guardian. — The  Nomination  and  Preference  of  the  Minor  in  this 
case  of  her  aunt  for  guardian  as  against  the  child's  mother,  who  had 
remarried  after  divorce  from  the  child 's  father  to  one  who  was  the 
object  of   the  child's  aversion — discussed,  but   not  decided. 

Guardian — Nomination  by  Minor. — In  this  case  it  was  held  that  an 
application  for  guardianship  by  the  minor's  nominee  should  be  de- 
nied, although  the  applicant  and  minor  were  closely  related  and  af- 
fectionately disposed  toward  each  other,  having  lived  and  loved  as 
if  mother  and  child  for  years;  it  appearing  that,  from  the  circum- 
stances of  the  applicant,  a  grant  of  guardianship  would  not  be  for 
the  best  interests  of  the   child   as  to  its  temporal  welfare. 

Guardian — Nomination  by  Minor— Nonresidence. — Where  an  appli- 
cant for  guardianship  of  a  minor,  claiming  as  the  minor 's  nominee, 
is  a  nonresident  of  the  state,  and  only  awaits  the  determination  of 
the  application  to  return  home,  the  court  will  not  be  justified  in  con- 
firming the   minor's   choice,   even   if  legally   permitted   to   do   so. 

Guardian — Nomination  by  Minor. — In  this  case  the  court,  in  de- 
termining an  application  for  guardianship  upon  the  nomination  of 
the  minor  over  fourteen  years  of  age — involving  the  minor's  compe- 
tency and  the  applicant 's  rights,  with  the  court 's  duty  in  the  prem- 
ises^considered  and  construed  sections  1748,  1749,  Code  of  Civil  Pro- 
cedure, and  section  246,  253   (subdivision  6),   Civil  Code. 

In  this  case  the  record  shows  the  filing  of  two  separate 
petitions  for  the  guardianship  of  the  above-named  minor, 
Susanna  Zimmer.  The  first  application  was  filed  by  Mrs. 
Susanna  Smith  on  October  12,  1883.  It  is  alleged  that  the 
minor  was  a  resident  of  the  city  and  county  of  San  Fran- 
cisco ;  that  the  minor  was  and  had  been  for  ten  years  last 
past  in  the  exclusive  custody  of  the  petitioner,  and  had 
been  by  petitioner  maintained  and  educated;  that  the  minor 


Guardianship  of  Zimmer.  143 

was  aged  sixteen  (16)  years  and  four  (4)  months,  and  that 
her  mother  was  married  to  the  stepfather  of  the  minor.  An- 
nexed to  the  petition  was  a  written  request  and  nomination 
of  the  minor,  dated  October  9,  1883,  in  favor  of  the  peti- 
tioner. The  second  application  for  guardianship  of  the 
minor  was  made  and  filed  by  Julia  Krone,  and  alleged  that 
the  applicant  was  the  mother  of  the  minor,  the  minor  being 
a  resident  of  the  city  and  county  of  San  Francisco;  that  the 
applicant  was  by  a  decree  of  the  "fifteenth  district  court" 
granted  a  divorce  from  Ernst  Zimmer,  the  father  of  the 
minor,  on  the  ground  of  adultery  on  the  part  of  said  father, 
and  that  by  the  same  decree  the  custody  of  said  minor  was 
awarded  to  her  (the  applicant).  Neither  of  the  applicants 
filed  any  answer  to  the  petition  of  the  other,  so  far  as  the 
record  in  the  guardianship  shows;  and  the  opinion  of  the 
court  expressly  states  that  it  was  delivered  only  with  respect 
to  the  application  of  Mrs.  Susanna  Smith,  without  decisively 
passing  upon  the  merits  or  legal  standing  of  the  mother's 
petition.  As  to  the  decision  of  the  court  being  based  upon 
the  nonresidence  of  the  applicant,  it  should  be  noticed  that 
both  of  the  applicants  carefully  alleged  the  residence  of 
the  minor  as  hereinabove  stated. 

Matt.  I  Sullivan,  for  Susanna  Smith. 

E.  J.  Linforth,  for  Julia  Krone. 

COFFEY,  J.  Application  of  Susanna  Smith  for  letters 
of  guardianship  of  the  person  of  Susanna  Zimmer,  a  minor, 
The  minor  is  an  intelligent  girl  of  about  the  age  of  sixteen 
years,  of  fair  education,  and  legally  competent  to  nominate 
her  own  guardian,  subject  to  the  approval  of  the  court :  Code 
Civ.  Proc,  sees.  1748,  1749.  She  is  capable  of  expressing  an 
intelligent  preference,  and  the  court  should  consider  that 
preference  in  determining  the  question :  Civ.  Code,  sec.  246. 

But  the  court  must  be  guided  in  so  determining  by  what 
appears  to  be  for  the  best  interest  of  the  child,  in  respect  to 
its  temporal  and  its  mental  and  moral  welfare:  Civ.  Code, 
sec.  246.  The  nominee  of  the  minor  is  doubtless  a  worthy 
woman,  and  affectionately  disposed  toward  the  child,  with 
whom  she   has   l)eon    familiarly   associated   for  mauv  vears. 


144  Coffey's  Probate  Decisions,  Vol.  1. 

The  minor  has  been  treated  by  this  lady,  who  is  her  aunt, 
as  if  she  were  her  own  child ;  has  lived  in  her  family  with 
the  consent  of  her  own  parents  for  several  years;  and  has 
been  educated  largely  through  the  kindness,  affection  and 
liberality  of  the  applicant  and  her  husband.  All  of  this 
the  minor  acknowledges  and  appreciates;  and  she  desires 
to  remain  in  the  relation  she  has  sustained  for  so  long  a 
period.  She  manifests  no  want  of  affection  towards  her 
mother,  who  is  a  counter-applicant  here,  but  has  an  aversion 
toward  her  stepfather,  her  own  father  being  legally  separated 
from  her  mother,  who  is  married  a  second  time,  to  the  object 
of  this  minor's  aversion. 

Without  considering  now  the  counter-application  of  the 
mother,  it  is  sufficient  to  say  that  the  court  considers  that 
with  reference  to  the  competency  of  the  nominee  of  the  minor, 
it  does  not  appear  from  the  evidence  to  be  for  the  best  inter- 
est of  the  child,  in  respect  to  its  temporal  welfare  (Civil  Code, 
section  246)  to  commit  her  to  such  custody;  and  it  further 
appearing  from  the  evidence  that  the  nominee  of  the  minor 
is  a  resident  of  the  state  of  Nevada,  having  her  home  for 
many  years  in  that  state,  and  only  awaiting  the  determination 
of  this  application  to  return  thither,  the  court  would  not  be 
justified  in  confirming,  even  if  legally  permitted  to  confirm, 
the  choice  of  the  minor:  See  Civ.  Code,  sec.  253,  subd.  6. 
Application  denied. 


The  Wishes  or  Judgment  of  a  Child  of  sufficient  maturity  to  realize 
in  a  measure  his  situation  cannot,  independent  of  or  despite  other 
circumstances,  control  the  court  in  the  determination  of  his  custody: 
Stapleton  v.  Poynter,  111  Ky.  264,  98  Am.  St.  Eep.  411,  62  S.  W. 
730,  53  L.  R.  A.  784. 


Estate  of  Maxwell.  145 


Estate  of  RICHARD  T.  MAXWELL,  Deceased   (No.  3). 

[No.  2,625;   decided  January  27,  1885.] 

Will — Supplsring  Defects  l)y  Implication. — When,  from  the  whole 
will,  the  court  can  determine  that  the  testator  necessarily  intended 
an  interest  to  be  given,  which  is  not  bequeathed  by  express  and 
formal  words,  the  court  should  supply  the  defect  by  implication,  and 
so  mold  the  testator's  language  as  to  carry  into  effect,  as  far  as  pos- 
sible, the  intention  which  he  has  in  the  whole  will  sufficiently  de- 
clared. 

Will — Construction  Avoiding  Partial  Intestacy. — The  law  prefers  a 
construction  of  a  will  which  will  prevent  a  partial  intestacy,  to  one 
which  will  permit  such  a  result,  unless  a  construction  involving  par- 
tial intestacy  is  absolutely  forced  upon  the  court,  for  the  fact  of 
making  a  will  raises  a  very  strong  presumption  against  any  expecta- 
tion or  desire,  on  the  part  of  the  testator,  of  leaving  any  portion 
of  his  estate  beyond  the  operation  of  his  will. 

Wills — Construing  Parts  in  Relation  to  Each  Other. — All  the  parts 
of  a  will  are  to  be  construed  in  relation  to  each  other,  and  so  as 
if  possible  to   form  one  consistent  whole. 

Will — Contradictory  Clauses. — Where  several  parts  of  a  will  are  ab- 
solutely irreconcilable,  the  latter  part  must  prevail;  but  the  former 
of  several  contradictory  clauses  is  never  sacrificed  except  on  the 
failure  of  every  attempt  to  give  all  such  a  construction  as  will 
render  every  part  effective. 

Will.— When  the  Meaning  of  Any  Part  of  a  Will  is  Ambiguous 
or  doubtful,  it  may  be  explained  by  any  reference  thereto  or  recital 
thereof  in  another  part  of  the  will. 

Will.— The  Words  of  a  Will  are  to  be  Taken  in  Their  Ordinary 
and  Grammatical  Sense,  unless  a  clear  intention  to  use  them  in  an- 
other sense  can  be  collected,  and  that  other  can  be  ascertained. 

Will. — The  Words  of  a  Will  are  to  Receive  an  Interpretation 
which  will  give  to  every  expression  some  eft'ect,  rather  than  one 
which  will  render  any  of  the  expressions  inoperative. 

Will. — Where  a  Testator  Gives  to  B  a  Specific  Fund  or  property 
at  the  death  of  A,  and  in  a  subsequent  clause  disposes  of  all  his 
property,  the  combined  effect  of  the  several  clauses,  as  to  such  fund 
or  property,  is  to  vest  it  in  A  for  life,  and  after  his  decease  in  B. 

Will. — A  Will  Consisting  of  Several  Parts,  separately  executed  by 
the    testator,    must    be    considered    as   a    single   instrument    completed 
in  all  its  parts  at  one  time. 
Prob.  Dec,  Vol.  I— 10 


146  Coffey's  Probate  Decisions,  Vol.  1. 

Daniel  Rogers,  for  applicants,  the  executors. 
Thos.  I.  Bergin,  for  Miss  Elena  Donnelly. 
A.  F.  Morrison,  for  Miss  Margaret  McKenzie. 
J.  R.  Brandon,  for  the  Tybout  heirs. 

COFFEY,  J.  This  is  an  application  on  the  part  of  Daniel 
Rogers  and  Charles  Ashton,  executors  of  the  last  will  and 
testament  of  Richard  Tybout  Maxwell,  deceased,  for  distri- 
bution, according  to  "the  provisions  of  said  will";  and  the 
application  involves  a  construction  of  the  terms  of  said  in- 
strument, which  (as  usually  occurs  in  cases  where  a  man 
draws  his  own  will)  has  been  variously  interpreted  according 
to  the  desire  of  the  interested  interpreter.  The  views  of  the 
court  as  to  the  correct  construction  are  appended. 

"Where  it  is  possible  for  the  court,  upon  a  reading  of  the 
whole  will,  to  arrive  at  a  conclusion  that  the  testator  neces- 
sarily intended  an  interest  to  be  given,  which  is  not  be- 
queathed by  express  and  formal  words,  the  court  should 
supply  the  defect  by  implication,  and  so  mold  the  language 
of  the  testator  as  to  carry  into  effect,  as  far  as  possible,  the 
intention  which  it  is  of  opinion  that  he  has  on  the  whole 
will  sufficiently  declared :  Metcalf  v.  Framingham  Parish,  128 
Mass.  370.     See  opinion  of  Mr.  Chief  Justice  Gray,  p.  374. 

The  law  prefers  a  construction  of  a  will  which  will  prevent 
a  partial  intestacy  to  one  which  will  permit  such  result 
(Vernon  v.  Vernon,  53  N.  Y.  361,  opinion  by  Mr.  Justice 
Andrews),  unless  such  construction  involving  partial  intes- 
tacy is  absolutely  forced  upon  the  court,  which  rule  of  prefer- 
ence has  been  adopted  partly  from  considerations  of  policy, 
but  mainly  because  it  is  calculated  to  carry  into  effect  the 
presumed  intention  of  the  testator;  for  the  fact  of  mak- 
ing a  will  raises  a  very  strong  presumption  against  any 
expectation  or  desire,  on  the  part  of  the  testator,  of  leaving 
any  portion  of  his  estate  beyond  the  operation  of  his  will : 
2  Redfield  on  Wills,  3d  ed.,  *116,  and  see  note  thereunder  32. 

All  the  parts  of  a  will  are  to  be  construed  in  relation  to 
each  other,  and  so  as  if  possible  to  form  one  consistent 
whole,  but  where  several  parts  are  absolutely  irreconcilable, 


Estate  op  Maxwell.  147 

the  latter  must  prevail :  Civ.  Code,  sec.  1321.  Where  the 
meaning  of  any  part  of  a  will  is  ambiguous  or  doubtful,  it 
may  be  explained  by  any  reference  thereto,  or  recital  thereof, 
in  another  part  of  the  will :  Civ.  Code,  sec.  1323.  The  words 
of  a  will  are  to  be  taken  in  their  ordinary  and  grammatical 
sense,  unless  a  clear  intention  to  use  them  in  another  sense 
can  be  collected,  and  that  other  can  be  ascertained :  Civ.  Code, 
sec.  1324.  The  words  of  a  will  are  to  receive  an  interpreta- 
tion which  will  give  to  every  expression  some  effect,  rather 
than  one  which  will  render  any  of  the  expressions  inoper- 
ative: Civ.  Code,  sec.  1325.  The  rule  which  sacrifices  the 
former  of  several  contradictory  clauses  is  never  applied  but 
on  the  failure  of  every  attempt  to  give  to  the  whole  such  a 
construction  as  will  render  every  part  of  it  effective.  Where 
a  testator  gives  to  B  a  specific  fund  or  property  at  the  death 
of  A,  and  in  a  subsequent  clause  disposes  of  the  whole  of  his 
property,  the  combined  effect  of  the  several  clauses  as  to  such 
fund  or  property  is  to  vest  it  in  A  for  life,  and  after  his 
decease  in  B :  2  Jarman  on  Wills,  49,  5th  Am.  ed.,  *476. 

In  applying  these  principles  of  construction  to  the  instru- 
ment before  me  (a  copy  of  which  is  hereunder  inserted)  : 

"San  Francisco,  July  23,  1882. 

"Fully  aware  of  the  uncertainty  of  life,  and  being  of 
sound  mind  and  memory,  I  declare  this  to  be  my  last  will  and 
testament,  hereby  revoking  all  wills  and  codicils  to  wills  by 
me  heretofore  made. 

"The  dilatory  habits  of  my  counsel  employed  in  the  di- 
vorce suit,  recently  decided  in  my  favor  in  the  Superior 
Court,  having  left  thus  far  the  matter  incomplete  in  this, 
that  the  quit-claim  deed  from  the  former  Mrs.  M.  W.  Max- 
well has  not  yet  been  signed  and  returned  by  her,  nor  has  the 
mortgage  in  her  favor  upon  my  land  in  Napa  County,  secur- 
ing to  her  the  sum  of  one  hundred  and  twenty-five  dollars  per 
month,  been  submitted  to  me  for  signature,  I  desire  that  my 
executors  may  at  once,  if  it  is  possible,  have  this  matter 
settled  on  this  basis.  Should  this  be  impossible,  she  is  of 
course  entitled  to  her  half  of  the  property  I  leave  behind 
me,  which  is  all  community  property.  Shou.ld  it,  under  these 
circumstances,  be  necessary  to  sell  in  order  to  divide,  it  is 


148  Coffey's  Probate  Decisions,  Vol.  1. 

my  desire  that  my  executors  shall,  after  paying  all  my 
debts,  be  appointed  trustees  by  the  Court,  and  that  they  shall 
receive  as  my  bequest  in  trust  the  balance  of  the  estate  which 
I  desire  shall  (if  the  property  has  been  necessarily  in  their 
judgment  sold  to  effect  a  division)  be  invested  in  first  mort- 
gages on  real  estate  of  unquestionable  title,  and  the  monthly 
income  derived  therefrom  be  equally  divided  between  Miss 
Nellie  Donnelly,  residing  at  2103  Jones  street,  with  her  par- 
ents, and  Miss  Margaret  McKenzie,  living  at  the  northwest 
corner  of  Folsom  and  Second  streets,  that  I  may,  so  far  as 
is  in  my  power,  prove  my  appreciation  of  their  kindness 
and  my  sincere  friendship  for  them  both,  trusting  that  I  may 
lessen  the  burden  of  life  to  each  of  them.  In  case  of  the 
death  of  either  of  them,  I  wish  the  whole  income  paid  to  the 
survivor,  and  after  her  death  the  whole  amount  or  then  value 
of  the  property  to  be  equally  divided  between  the  living 
children  of  my  sister,  Mrs.  Elizabeth  C.  Tybout,  living  in  New 
Castle  County,  Delaware. 

"I  hereby  appoint  Daniel  Rogers,  Esq.,  and  Mr.  Charles 
Ashton  my  executors,  and  direct  that  no  bonds  shall  be  re- 
quired. RICHARD  TYBOUT  MAXWELL. 

"It  is  my  earnest  desire  that  if  possible  the  real  estate 
in  Napa  County  shall  not  be  sold,  but  held  for  some  years, 
and  rented  on  shares  or  otherwise  by  some  competent  person, 
and  that  it  shall,  after  the  lien  upon  it  in  the  shape  of  the 
mortgage  given  or  to  be  given  to  Mrs.  Maxwell  (formerly) 
shall  have  been  removed  by  her  death,  be  still  so  managed 
by  my  executors,  or  rather  as  they  will  then  be  the  trustees 
for  the  heirs,  and  that  Miss  Margaret  McKenzie  shall,  under 
these  circumstances,  receive  during  her  life  an  income  of  one 
hundred  dollars  per  month,  if  this  does  not  exceed  one-half 
of  the  income  from  the  property,  and  the  estate  be  in  that 
case  conveyed  entire  to  Miss  E.  Donnelly,  to  whom  I  hope  to 
be  married,  should  my  life  be  spared,  in  a  few  months.  All 
of  this  expression  of  my  desires  as  to  settlement  of  my  prop- 
erty is  in  consequence  of  my  knowledge  of  the  dangers  at- 
tendant upon  a  surgical  operation,  to  which  I  expect  to  be 
subjected  in  a  short  time. 

"RICHARD  TYBOUT  MAXWELL." 


Estate  of  Maxwell.  149 

I  must  consider  it  as  one  single  instrument,  completed  in 
all  its  parts  at  one  time,  and,  as  such  it  was  probated.  From 
this  instrument  it  appears  that  the  testator  had  in  view  three 
objects:  (1)  the  satisfaction  of  the  lien  upon  the  estate  in 
favor  of  his  former  wife;  (2)  the  provision  of  an  income  for 
Miss  Donnelly  and  Miss  McKenzie,  that  he  might  'lessen 
the  burden  of  life  to  each  of  them,"  in  recognition  of  their 
kindness  to  him  and  his  friendship  for  them;  and  (3)  the 
division  of  the  proceeds  of  his  property  after  the  death  of  the 
others  named  to  the  children  of  his  sister,  Mrs.  Tybout.  The 
latter  part  of  this  instrument  is  to  be  reconciled,  if  possible, 
to  the  foregoing  provisions :  Civ.  Code,  sec.  1325 ;  2  Jarman 
on  Wills,  49,  *476. 

This  latter  portion,  which  is  claimed  to  operate  as  a  revo- 
cation, should  not  be  so  construed,  unless  it  is  absolutely  irrec- 
oncilable with  the  rest.  It  evidently  was  designed  by  the 
testator  that  the  Tybouts  should  have  the  benefits  of  his 
bounty,  after  his  other  assumed  obligations  had  been  dis- 
charged by  the  death  of  the  beneficiaries,  and  the  latter 
part  of  the  will  may  be  reconciled  with  this  intention  by 
considering  the  contingency,  and  providing  for  it,  of  the 
death  of  the  former  Mrs.  Maxwell,  and  in  that  event  a  larger 
amount  coming  into  the  hands  of  the  trustees,  in  which  case 
a  fixed  certain  sum  might  be  paid  to  Miss  McKenzie,  thus 
dispensing  with  the  necessity  of  trustees  to  divide  the  estate, 
and  enabling  them  to  convey  it  entire  to  Miss  Donnelly ;  that 
is  to  say  (by  way  of  interpretation),  the  estate  held  by  the 
trustees  is  to  be  conveyed  to  Miss  Donnelly  to  enjoy  during 
her  life,  subject  to  the  payment  of  $100  per  month  to  Miss. 
McKenzie.  This  seems  to  me  to  be  the  combined  effect  of  the 
several  clauses  of  the  will  (Jarman  on  Wills,  476),  and  I 
conceive  it  to  be  the  correct  construction  of  this  instrument. 

Throughout  the  paper  the  testator's  intention  seems  to 
be  to  make  life  provision  for  Miss  Donnelly  and  ^liss 
McKenzie,  to  "lessen  the  burden  of  life  to  each  of  them," 
as  he  expresses  it ;  and  his  intention  is  quite  manifest  to  pro- 
vide for  his  sister's  children,  after  provision  for  Miss  Don- 
nelly and  Miss  McKenzie  should  be  no  longer  necessary;  to 
secure  these  two  named  ladies  against  want  was  his  clear 


150  Coffey's  Probate  Decisions,  Vol.  1. 

design,  by  imposing  a  life  lien  upon  his  estate,  and  after  that 
to  give  the  remainder  to  the  children  of  his  sister.  If  this 
be  not  the  true  interpretation  of  his  intention,  he  has  cer- 
tainly chosen  his  words  cleverly  to  conceal  his  meaning;  but 
I  think  that,  upon  a  study  of  the  whole  instrument,  I  have 
arrived  at  the  correct  conclusion. 

Daniel  Rogers  renounces  his  trust  as  trustee  under  the 
will,  and  his  coexecutor,  Charles  Ashton,  accepts  the  trust 
devolved  upon  him  by  the  testator,  and  the  estate  should  be 
distributed  to  him  for  the  purposes  named  in  said  will, 
according  to  the  provisions  thereof  as  construed  by  the  court 
in  the  foregoing  opinion. 

Application  granted. 


All  the  Various  Parts  of  a  Will  are  Construed  in  relation  to  each 
other,  so  as  to  form,  if  possible,  one  consistent  whole;  but  if  differ- 
ent parts  are  irreconcilable,  the  latter  prevails:  Cal.  Civ.  Code, 
1321;  Mont.  Civ.  Code,  1773;  N.  D.  Eev.  Code,  5133;  Okl.  Eev. 
Stats.  6841;    S.  D.  Civ.  Code,  1040;    Utah  Eev.  Stats.  2771. 

The  Making  of  a  Will  Raises  a  Presumption  that  the  testator  in- 
tended to  dispose  of  all  his  property.  And  constructions  which  lead 
to  intestacy,  total  or  partial,  are  not  favored.  Therefore  such  an 
interpretation  should,  when  reasonably  possible,  be  placed  upon  the 
provisions  of  a  testamentary  instrument  as  will  prevent  that  result. 
These  principles  have  been  made  a  part  of  the  statutory  law.  Of 
course,  if  the  expressed  intent  of  a  testator  is  intestacy,  he  must 
be  presumed  to  have  intended  that  result:  1  Eoss  on  Probate  Law 
and  Practice,  78. 


Estate  of  BRIDGET  McGOVERN,  Deceased. 
[No.  2,643;    decided  October  23,  1883.] 

A  Cost  Bill  is  not  Piled,  if  not  delivered  to  the  clerk  nor  received 
by   him. 

Filing  a  Paper  Consists  in  Presenting  It  at  the  Proper  Office  and 
leaving  it  there,  deposited  with  the  papers  in  such  office. 

Filing  Papers. — Section  1030  of  the  Political  Code  Defines  and  Fixes 
the  hours  during  which  public  offices  shall  be  kept  open;  and  a  paper 
which  is  left  in  a  public  office  one  hour  after  the  time  fixed  by  law 
for  its  closing,  is  left  there  when  the  office  is  legally  closed. 


Estate  of  McGovern.  151 

Where  a  Cost  Bill  is  Left  in  the  Clerk's  Office  About  One  Hour 
After  the  Time  specified  by  law  for  the  closing  of  the  office,  there 
being  no  person  present  authorized  to  receive  and  file  it,  the  paper 
is  not  filed;  and  if  the  date  of  the  alleged  filing  is  the  last  day 
allowed  by  the  statute  for  filing  the  bill,  a  motion  to  strike  it  out 
should  be  granted. 

The  opinion  of  the  court  in  this  case  was  rendered  upon 
a  notice  of  motion  to  strike  out  cost  bill  filed  August  28, 
1883.  The  notice  was  given  by  M.  Cooney,  the  attorney 
theretofore  appointed  by  the  court  to  appear  "for  Ellen 
McPartry,  of  Ireland,  John  Simpson,  of  Philadelphia,  Ann 
Halligan,  of  Philadelphia,  Rose  Kenney,  Boston,  to  repre- 
sent them  upon  the  contest  and  application  for  the  probate 
of  the  alleged  will  on  file  herein,  and  upon  all  subsequent 
proceedings  in  the  estate;  such  persons  being  heirs  of  de- 
ceased  (Bridget  McGovern)." 

The  notice  of  motion  was  directed  to  a  cost  bill  claimed 
to  have  been  filed  August  23,  1883,  but  which  appears  by  the 
record  to  have  not  been  actually  filed  till  January  12,  1884; 
this  cost  bill  was  presented  by  John  McQueeny  and  Edward 
McFernan,  proponents  and  executors  of  the  last  will  of  the 
deceased,  and  purported  to  be  a  memorandum  of  costs  in- 
curred on  the  contest  to  the  probate  of  the  will;  the  contest 
having  been  made  by  the  heirs  named  aforesaid,  represented 
by  M.  Cooney.  The  ground  specified  in  the  notice  of  motion 
to  strike  out  was,  among  other  grounds,  first,  that  the  cost 
bill  "was  not  filed  or  served  within  five  days  after  the  de- 
cision and  judgment  of  the  court  was  made,  and  the  ^der 
admitting  the  will  to  probate  was  made  and  entered."  The 
opinion  of  the  court  is  directed  solely  to  this  first  ground, 
and  the  facts  supporting  that  ground  are  fully  set  out  in 
the  opinion. 

M.  Cooney,  for  the  motion. 

C.  F.  Hanlon,  contra. 

COFFEY,  J.  The  cost  bill  in  this  matter  was  not  deliv- 
ered to  the  clerk,  nor  received  by  him.  "Filing  a  paper 
consists  in  presenting  it  at  the  proper  office,  and  leaving  it 
there  deposited  with  the  papers  in  such  office."     Accordino- 


152  Coffey's  Probate  Decisions,  Vol.  1. 

to  the  evidence,  the  office  was  legally  closed  when  the  paper 
was  left  there:  Pol.  Code,  sec.  1030.  No  person  authorized 
to  receive  it  and  file  it  was  present — it  being  about  one  hour 
after  the  closing  of  the  office  (Pol.  Code,  sec.  1030),  and  there 
w^as  no  person  present  to  whom  it  could  be  "presented," 
nor  does  it  appear  it  was  "deposited  with  the  papers"  in 
the  office.  This  paper  never  was  filed,  in  the  sense  of  the 
statute. 

Motion  to  strike  out  granted. 


Estate  of  WILLIAM  LUND,  Deceased. 

[No.   351;    decided   October  20,   1884.] 

Attorney. — An  Administratrix  has  Power  to  Employ  an  Attorney 

to    institute    proceedings    to    recover   damages    for   the    death    of    her 
intestate. 

Attorney — Compensation. — An  Attorney  Who  Renders  Services 
for  the  Benefit  of  an  estate,  at  the  request  of  the  administratrix 
thereof  is  entitled  to  reasonable  compensation  therefor.  The  pro- 
bate department  is  the  proper  forum  in  which  to  present  his  claim 
for  such  services;  they  are  "expenses  of  administration,"  and  the 
probate  department  has  exclusive  jurisdiction  to  adjust  and  enforce 
such  demands. 

Attorney — Contingent  Fee. — An  Administratrix  has  no  Power  to 
Make  a  Contract  with  an  Attorney  for  the  payment  of  a  contingent 
fee  to  him  out  of  the  assets  of  the  estate.  But  the  employment  of 
an  attorney  to  perform  services,  and  a  promise  to  pay  him  a  contin- 
gent fee  for  such  services,  are  separable.  The  retainer  of  the  attor- 
ney, and  rendering  of  services  by  him  in  pursuance  of  such  retainer, 
may  be  considered  by  the  court  apart  from  the  promise  to  pay  a 
contingent  fee,  and  the  compensation  will  be  adjudged  according 
to  the  proof  of  the  reasonable  value  of  the  services.  An  attorney 
accepting  employment  and  rendering  services,  under  such  circum- 
stances, must  rely  upon  the  subsequent  action  of  the  court  in  ad- 
judging proper  compensation,  and  consents  to  perform  his  duty  with- 
out other  compensation  than  may  so  be  allowed. 

William  Lund  died  intestate  in  San  Francisco,  a  resident 
thereof,  and  leaving  estate  therein,  on  the  sixth  day  of  April, 
1880. 

He  left  a  surviving  w^ife,  Catherine  Lund,  who,  upon  peti- 
tion filed  on  June  16,   1880,   was  appointed  administratrix 


Estate  of  Lund.  153 

of  his  estate  on  June  28,  1880,  and  letters  of  administration 
were  issued  to  her  on  July  6,  1880. 

The  petition  for  probate  stated  that  the  estate  of  the  dece- 
dent consisted  of  certain  personal  property,  and  a  claim  for 
damages  against  the  Spring  Valley  Water  Works,  arising 
by  reason  of  negligence  of  that  corporation,  which  caused 
the  death  of  Mr.  Lund. 

On  July  21,  1884,  P.  B.  Nagle  filed  a  petition  in  the  matter 
of  the  estate,  in  which  he  alleged  that  the  administratrix, 
as  such,  employed  him  to  institute  and  prosecute  an  action 
against  the  Spring  Valley  Water  AVorks,  on  the  above-men- 
tioned claim;  that  the  administratrix  agreed  to  pay  all  the 
costs  and  expenses  of  the  action,  and  to  pay  the  petitioner 
one-half  of  all  that  was  recovered  therein,  as  compensation 
for  his  services. 

That  accordingly  petitioner  commenced  said  action  on  her 
behalf,  on  the  twenty-eighth  day  of  February,  1881,  and  that 
he  diligently  prosecuted  the  same;  that  the  action  was  tried 
before  a  .jury,  but  that  the  .jury  failed  to  agree;  that  there- 
after petitioner  was  ready  and  willing  to  enter  upon  a  second 
trial  of  said  action,  provided  the  administratrix  paid  the 
costs  and  expenses  of  such  trial,  but  that  she  refused  to  do  so, 
and  on  July  13,  1882,  discharged  the  petitioner  as  her  attor- 
ney in  said  action,  and  employed  P.  F.  Dunne  in  his  place 
and  stead,  who  was  regularly  substituted  therein ;  that  on 
February  15,  1883,  the  administratrix  recovered  judgment 
against  the  Spring  Valley  Water  Works  in  said  action  for 
the  sum  of  $4,000  and  costs,  which  .judgment  was  paid  in 
March,  1884;  that  the  reasonable  value  of  the  services  of 
petitioner  in  said  action  up  to  the  time  of  his  discharge  was 
$500,  and  that  the  administratrix  refused  to  pay  the  same, 
hence  he  asked  that  said  sum  be  allowed  him,  and  that  the 
administratrix  be  ordered  to  pay  it. 

To  this  petition  the  administratrix  filed  a  denuirrer  on 
July  28,  1884,  specifying  as  grounds  therefor  that  it  ap- 
peared from  the  petition  that  P.  F.  Dunne,  and  not  the 
petitioner,  performed  the  services  which  resulted  in  the  re- 
covery of  the  judgment,  and  that  under  petitioner's  contract, 
as  alleged  by  him,  his  compensation  was  dependent  upon  a 


154  Coffey's  Probate  Decisions,  Vol.  1. 

recovery  by  him,   and,   further,   that  it   appeared   that   the 
contract  was  illegal  and  void. 

James  L.  Nagle,  for  petitioner. 

R.  H.  Taylor,  for  administratrix. 

COFFEY,  J.  This  department  is  the  proper  forum  in 
which  to  present  the  claim  of  petitioner:  Gurnee  v.  Maloney, 
38  Cal.  87,  99  Am.  Dec.  352. 

Services  rendered  at  the  request  of  an  administratrix, 
for  the  benefit  of  an  estate,  are  "expenses  of  administra- 
tion," and  the  probate  department  has  exclusive  original 
jurisdiction  to  adjust  and  enforce  such  demands:  Ibid. 

If  it  shall  appear  that  the  petitioner  performed  any  ser- 
vice for  the  advantage  of  the  estate  at  the  instance  and 
request  of  the  administratrix,  the  court  will  award  such  com- 
pensation as,  in  its  opinion,  such  service  may  be  reasonably 
worth. 

The  administratrix  had  the  power  to  employ  counsel  for 
the  purpose  indicated  in  the  petition,  although  not  to  make 
a  contract  for  the  payment  of  a  contingent  fee  out  of  the 
assets  of  the  estate.  These  two  things  are  to  be  separately 
considered;  they  are  separable.  The  retainer  of  an  attorney, 
and  the  rendering  of  service  by  him  in  pursuance  of  such 
retainer,  is  what  the  court  may  consider;  and,  according  to 
the  proof,  his  compensation  will  be  adjudged  by  the  court: 
Estate  of  Page,  57  Cal.  238. 

An  attorney  accepting  employment  and  rendering  ser- 
vices under  such  circumstances,  must  rely  upon  the  subse- 
quent action  of  the  court  in  ascertaining  and  adjudging 
proper  compensation.  In  accepting  the  employment  he  con- 
sented to  perform  his  duty  without  other  compensation  than 
such  as  might  be  allowed  by  the  court :  Cole  v.  Superior 
Court,  10  Pac.  C.  L.  J.  732  (S.  C,  63  Cal.  86,  49  Am.  Rep. 
78). 

I  understand  the  claim  of  petitioner  to  be  on  the  score 
of  services  rendered  for  the  benefit  of  the  estate,  and  at 
the  request  of  administratrix;  and  he  should  be  allowed  to 
prove  whether  he  rendered  any  such  services  at  any  such 
request,  and  their  value. 

Demurrer  overruled;  fifteen  days  to  answer. 


Estate  of  Jennings.  '  155 

An  Executor  or  Administrator  is  Entitled  to  an  Allowance  for  Legal 
Services  rendered  him  both  in  conducting  the  ordinary  probate  pro- 
ceedings and  in  conducting  necessary  litigation.  In  fact,  he  is  enti- 
tled to  reasonable  attorney  fees  in  any  matter,  arising  in  the  ad- 
ministration of  the  estate,  which  calls  for  legal  advice  or  counsel: 
Elizadale  v.  Murphy,  4  Cal.  A  pp.  114,  87  Pac.  245;  Estate  of  Miner, 
46  Cal.  564;  Estate  of  Simmons,  43  Cal.  543;  Hicox  v.  Graham,  6 
Cal.  167;  Steel  v.  Holladay,  20  Or.  462,  26  Pac.  562;  Nash  v.  Wake- 
field, 30  Wash.  556,  71  Pac.  35;  Estate  of  Davis,  33  Mont.  539,  88 
Pac.  957. 


Estate  of  A.  A.  JENNINGS,  Deceased. 

[No.   8,962,  former  Probate   Court;     decided   Nov.   22,   1883.] 

Administrator's  Sale — Advance  Bids  and  Resale. — When,  upon  the 
hearing  of  a  return  of  an  administrator's  sale  of  personal  property, 
the  purchaser  increases  his  bid  from  $3,000  to  $5,000,  it  is  manifest 
that  the  price  obtained  is  greatly  disproportionate  to  the  value  of 
the  property;  and  in  such  case  the  court  will  refuse  confirmation 
of  the  sale,  and  will  order  a  new  sale  to  be  had  under  circumstances 
calculated  to  bring  the  utmost  value  of  the  property.  • 

In  this  case,  on  the  nineteenth  day  of  July,  1882,  Barbara 
Jennings,  the  administratrix  with  the  will  annexed,  filed  a 
petition  praying  for  an  order  of  sale  of  certain  personal 
property,  being  the  only  property  of  the  estate,  and  desig- 
nated, "Assessments  and  contracts  for  street  work  done  in 
said  city  and  county  (of  San  Francisco)  by  said  deceased." 
And  in  the  petition  particularly  described  there  were  four 
contracts  set  out,  upon  which  there  were  due  the  following 
amounts,  to-wit:  Upon  the  first,  $12,576.88;  upon  the  second, 
$590.52 ;  upon  the  third,  $12,887.56 ;  and  upon  the  fourth, 
$10,077.34.  After  five  days'  notice  given  by  posting,  the 
court  (by  Hon.  Jno.  F.  Finn,  Judge)  on  July  25,  1882, 
made  an  order  of  sale  of  the  property  described  in  the 
petition  aforesaid,  and  directed  that  the  admininstratrix  sell 
the  same  "by  public  auction,  and  after  public  notice  given 
for  at  least  two  days  by  publication  in  the  'Daily  Chron- 
icle,' a  newspaper  published  in  said  city  and  county  (of  San 
Francisco)."  A  verified  return  and  account  of  the  sale  of 
the  property  under  the  aforesaid   order  was  made   by   the 


156'  Coffey's  Probate  Decisions,  Vol.  1. 

administratrix  and  filed  August  9,  1882,  and  showed  that  all 
of  the  property  was  sold  to  one  C.  J.  Shipman,  for  $500. 
On  October  2,  1882,  Mr.  C.  H.  Parker,  as  attorney  for  certain 
creditors  of  the  estate,  filed  written  objections  to  a  confirma- 
tion of  the  sale  returned,  detailing  a  great  many  exceptions 
to  the  proceedings  taken  in  the  premises.  Upon  the  eleventh 
day  of  IMay,  1883,  the  hearing  of  the  said  return  coming  on 
"after  due  continuances  and  upon  due  notice,"  and  the 
court  (Finn,  Judge)  finding  that  the  price  obtained  was 
disproportionate  to  the  value  of  the  property,  and  that  upon 
a  resale  at  least  $1,000  v/ould  be  obtained,  made  an  order 
that  the  sale  be  not  confirmed,  but  that  it  be  set  aside,  and 
that  the  administratrix  resell  the  property  under  the  orig- 
inal order  of  sale. 

Upon  August  30,  1883,  the  administratrix  filed  a  return 
and  account  of  sales  made  under  the  order  of  resale  of  May 
11,  1883,  showing  that  the  property  was  sold  at  public 
auction  in  several  parcels  as  follows :  Lot  No.  1,  to  C.  G. 
Shipman  for  $100;  lot  No.  2,  to  C.  G.  Shipman,  for  $10; 
lot  No.  3  to  J.  C.  Fruchey  for  $3,000 ;  and  lot  No.  4,  to  C. 
G.  Shipman  for  $100.  On  the  fourteenth  day  of  Septem- 
ber, 1883.  Mr.  C.  H.  Parker,  as  attorney  for  certain  creditors, 
objected  to  the  confirmation  of  the  sale  of  the  property  sold 
to  Fruchey  for  $3,000.  There  were  thirteen  written  excep- 
tions and  objections  to  this  sale,  detailed  at  great  length,  and 
included  all  the  technical  points  made  in  the  objections 
filed  by  said  attorney  to  the  previous  sale  of  the  property; 
bvit  these  grounds  and  technicalities  are  not  stated  here,  as 
the  only  matter  considered  by  the  court  was  the  objections 
taken  by  the  twelfth  and  thirteenth  grounds,  viz.:  (1)  that 
the  amount  bid  was  disproportionate  to  the  value  of  the  prop- 
erty; (2)  that  a  sum  exceeding  ten  per  cent,  exclusive  of 
expenses  of  new  sale,  could  be  obtained  if  a  new  sale  were 
ordered. 

On  September  21,  1883,  C.  H.  Parker  filed  a  written  bid 
for  the  property  sold  Fruchey,  of  $4,000,  and  expenses  of 
readvertising,  and  stipulating  to  pay  $5,000  if  the  property 
w^ere  sold  in  a  particular  manner  (that  is  to  say,  the  prop- 
erty sold  was  a  contract  and  assessment  for  grading  a  certain 


Estate  of  Armstrong.  157 

block  of  land;  and  it  was  claimed  that  the  property  should 
be  so  sold  as  to  give  each  property  owner  in  the  block, 
against  whom  there  was  an  assessment,  an  opportunity  to 
bid  upon  it). 

Upon  September  25,  1883,  J.  C.  Fruchey,  the  purchaser 
aforesaid,  made  and  filed  an  advance  bid  of  $5,000,  and 
authorized  the  return  of  sale  to  be  amended  by  inserting  the 
said  amount  in  place  of  the  sum  of  $3,000,  bid  by  him  at 
the  auction.  On  November  23,  1883,  the  court  ordered  an- 
other resale  of  the  entire  four  parcels  of  property  in  con- 
formity with  the  opinion  of  his  honor,  Judge  Coffey,  below, 
and  at  such  resale  it  appears  that  the  property  before  sold 
to  Fruchey  was  sold  to  Chipman  for  $6,500. 

C.  H.  Parker,  attorney  in  support  of  objections. 

J.  M.  Wood,  for  the  administratrix,  contra. 

COFFEY,  J.  It  is  manifest  from  the  offer  of  Mr. 
Fruchey 's  attorney  to  increase  his  bid  of  $3,000  to  $5,000, 
that  the  price  obtained  at  the  sale  was  greatly  disproportion- 
ate to  the  value  of  the  articles  sold.  I  have  fully  considered 
all  the  points  made  by  counsel  on  both  sides,  in  oral  argu- 
ment and  in  briefs,  and,  while  conceding  the  cogency  of  Mr. 
Wood's  presentation  of  views,  cannot  consider  it  conclusive. 
I  adhere  to  the  view  intimated  by  me  at  the  hearing,  as  the 
correct  conclusion — the  sale  cannot  be  confirmed ;  and  a  new 
sale  should  take  place  under  circumstances  calculated  to 
bring  the  utmost  value  of  the  property. 


Estate  of  MARGARET  AR^ISTRONG,  Deceased. 

[No.   2,054;     decided   December   12,    1883.] 

Trustee — Use  and  Management  of  Funds. — An  agent  or  trustee  has 
no  right  to  use  the  funds  intrusted  to  him  as  his  own,  nor  to  min- 
gle them  with  his  own  funds,  without  clear  authorization;  it  is  his 
duty  to  keep  the  funds  separate  and  intact,  and  free  from  any  lia- 
bility such  ns  he  incurs  in  the  use  of  his  own  moneys. 

Trustee — Management  of  Funds. — An  agent  or  trustee  must  pur- 
sue   with    exactitude    the    instructions    given    as    to    funds    intrusted 


158  Coffey's  Probate  Decisions,  Vol.  1. 

with    him,    or    show    that    his    particular    act    was    ratified    with    full 
-knowledge  on  his  principal's  part  as  to  the  nature  of  the  act. 

Trustee — Loaning  Funds. — Where  an  agent  or  trustee  is  instructed 
to  "loan  out"  funds  held  by  him,  it  means  that  he  is  to  invest 
them  for  his  principal 's  account,  and  to  make  an  accounting  to  the 
principal  of  such  investment.  He  is  not  authorized  to  borrow  the 
funds  for  his  own  purposes. 

Trustee — Investment  of  Funds. — Where  confidence  is  reposed  in  a 
trustee  to  judiciously  invest  the  funds  in  his  hands,  this  confidence 
is  abused  when  he  places  himself  in  the  position  of  a  debtor  to 
the  principal,  without  fully  advising  the  latter  of  the  risk  he  runs, 
and  giving  him  an  opportunity  of  knowing  the  hazard  that  the 
funds  are  subjected  to. 

Where  a  Trustee  to  Invest  has  Made  Himself  a  Debtor  to  His 
Principal,  and  thereby  subjected  the  funds  to  a  risk  and  hazard,  he 
must  show  that  he  fully  advised  his  principal  in  the  premises,  in 
order  to  avoid  responsibility  for  the  loss  his  conduct  may  cause. 

Trust — Limitation  of  Actions. — Where  one  occupies  a  fiduciary  re- 
lation, the  statute  of  limitations  cannot  avail  as  a  defense.  Lapse 
of  time  is  no  bar  to  a  subsisting  trust,  clearly  established. 

Trust — Limitation  of  Actions. — Where  one  has  occupied  a  fiduciary 
relation,  the  statute  of  limitations  cannot  be  availed  of,  unless  and 
until  a  demand  on  the  part  of  the  principal,  and  a  refusal  by  the 
trustee,  are  shown. 

Trust. — The  Following  Language  in  a  Letter  Written  by  One  Who 
has  Collected  and  holds  moneys  for  another,  establishes  a  trust: 
"It  leaves  a  balance  in  your  favor  of  $15,000,  besides  what  has 
accumulated  since  the  estate  was  fixed  up,  which  I  will  loan  out  [at] 
about  nine  per  cent,  being  the  best  I  can  do  at  present." 

Where  It  Appeared  that  a  Special  Administrator  had  been  a  Trus- 
tee for  the  decedent  in  her  lifetime,  and  there  was  a  large  balance 
at  the  time  of  decedent's  death,  for  which  he  should  be  held  ac- 
countable, and  he  has  made  no  statement  of  his  indebtedness  or 
trust  in  his  account  rendered  as  special  administrator,  he  should  be 
charged  with  the  amount  of  such  indebtedness  upon  the  settlement 
of  his  account. 

In  this  case  the  record  shows  that  Robert  Stevenson  filed 
an  application  for  letters  of  special  administration  upon  the 
twenty-first  day  of  November,  1882,  the  petition  alleging: 
That  decedent,  Margaret  Armstrong,  died  at  Foxlake,  Dodge 
county,  Wisconsin,  on  October  3,  1882,  being  then  and  there 
resident,  and  leaving  estate  in  the  city  and  county  of  San 
Francisco,   within   the   jurisdiction   of   the   court,    consisting 


Estate  of  Armstrong.  159 

of  an  undivided  one-eighth  (%)  interest  in  the  lot  of  land 
(and  the  improvements  thereon)  situated  on  the  southwest 
corner  of  California  and  Montgomery  streets,  in  the  afore- 
said city  and  county,  and  known  as  ' '  Stevenson  Block ' ' ;  that 
the  rents  and  profits  of  decedent's  interest  in  said  realtj^ 
amounted  to  $150  a  month ;  that  petitioner  was  a  brother 
of  the  decedent,  and  also  agent  for  all  the  owners  of  said 
"Stevenson  Block";  and  that  decedent  left  no  will.  Upon 
the  filing  of  said  petition  and  showing  made,  and  in  accord- 
ance with  the  prayer  of  the  petition,  the  said  Robert  Steven- 
son was  appointed  special  administrator,  and  upon  the  same 
day,  to-wit :  November  21,  1882,  letters  of  special  adminis- 
tration were  issued  to  him  by  the  clerk. 

Thereafter,  Maurice  B.  Blake  filed  a  petition  in  the  matter 
of  the  estate,  to  have  a  will  of  decedent  admitted  to  probate, 
upon  a  copy  of  said  will  and  of  the  probate  thereof  by  a  Wis- 
consin court  (all  duly  authenticated)  ;  and  after  due  pro- 
ceedings the  same  was  so  admitted  to  probate  upon  June  5, 
1883,  and  said  M.  B.  Blake  was  appointed  administrator  with 
the  will  annexed  of  the  estate  of  said  decedent,  and  there- 
upon qualified  on  June  9,  1883.  On  July  17,  1883,  the  said 
administrator,  Blake,  filed  a  petition  praying  that  a  citation 
issue  against  the  aforesaid  Robert  Stevenson,  directing  him 
to  render  an  account  of  his  special  administration  of  said  es- 
tate. Upon  this  petition  citation  was  issued  against  Steven- 
son, returnable  on  July  26,  1887 ;  citation  was  served,  and 
on  the  return  day  the  prayer  for  an  account  was  granted. 

On  August  3,  1883,  an  "Account  of  Robert  Stevenson, 
Special  Administrator,"  was  filed,  showing  that  he  received 
the  sum  of  $385  rents  from  James  W.  Hart,  collector  for  the 
"Stevenson  Block,"  and  that  he  paid  out  $133.45,  leaving  a 
balance  amounting  to  $251.55 ;  and  with  this  account  was 
filed  a  detailed  account  by  the  aforesaid  James  W.  Hart, 
the  agent  and  collector  of  all  the  rents  for  the  owners  of  the 
said  "Stevenson  Block."  On  August  7,  1883,  there  were 
filed  by  the  administrator,  Blake,  "Exceptions  to  Account  of 
Special  Administrator,"  contesting  the  said  account  filed  Au- 
gust 3,  1883,  on  the  grounds,  first,  that  Stevenson  has  not 
charged  himself  with  all  the  property  of  the  estate  coming 


160  Coffey's  Probate  Decisions,  Vol.  1. 

to  his  hands,  for  that  on  or  about  August  15,  1877,  in  de- 
cedent's lifetime,  he  collected,  as  her  agent,  a  large  sum  of 
money  and  also  other  personal  property,  and  an  interest  (un- 
divided) in  a  parcel  of  real  property,  distributed  to  her  as 
heir  of  one  Andrew  J.  Stevenson,  deceased;  that  large  sums 
were  afterward  received  as  her  agent  in  her  lifetime,  for 
rents  of  realty  and  interest  and  dividends  on  moneys  and 
stocks;  that  said  Stevenson  never  fully  accounted  to  her  for 
any  of  such  property  so  received  by  him  as  aforesaid;  that 
the  amount  of  Stevenson's  indebtedness  cannot  be  stated,  but 
is  believed  to  exceed  $20,000,  and  he  has  not  accounted  for 
any  of  it ;  second,  the  item  for  attorney  fees  of  special  admin- 
istration is  excessive ;  and  prayed  that  the  account  presented 
be  not  allowed,  but  that  said  Stevenson  be  compelled  to  charge 
himself  with  the  amount  of  his  indebtedness  and  with  all 
property  that  should  be  in  his  hands,  or  the  proceeds  of  the 
same. 

The  facts  proved  before  the  court,  and  which  led  to  the 
opinion  in  the  case,  can  be  best  given  as  they  were  presented 
in  the  ' '  Findings  and  Decision  on  Account  of  Special  Admin- 
istrator,"  drawn  in  conformity  with  the  opinion  and  filed 
January  17,  1884,  viz.:  1.  That  about  August  15,  1877,  said 
Robert  Stevenson,  as  agent  of  said  Margaret  Armstrong,  the 
decedent,  took  possession  of  the  sum  of  $24,618.80  one-eighth 
interest  in  the  lands  and  premises  known  as  '*  Stevenson 
Block,"  and  certain  mining  stocks,  jewelry  and  furniture, 
distributed  to  her  as  one  of  the  heirs  of  the  late  Andrew  J. 
Stevenson,  deceased.  2.  That  none  of  the  said  property  so 
received  by  him  is  accounted  for  in  his  account  as  special 
administrator;  but  that  the  jewelry  had  been  given  to  said 
Stevenson  by  the  decedent ;  that  the  mining  stocks  had  been, 
after  rendition  of  the  account,  delivered  to  the  administrator, 
Blake,  and  since  the  latter 's  qualification  he  has  been  in  pos- 
session of  the  interest  in  the  realty  and  of  the  household 
furniture.  3.  That  on  August  15,  1877,  there  remained  in 
Stevenson's  hands,  out  of  said  amount  of  $24,618.80,  the  sum 
of  $15,000  ($9,618.80  having  been  previously  disbursed  to 
his  principal)  ;  and  that  said  money  was  held  and  retained 
by  him  in  a  fiduciary  capacity,  upon  the  understanding  that 


Estate  of  Armstrong.  161 

he   should  loan  out  the  same  upon  interest  for  the  benefit 
of  his  principal,  the  aforesaid  decedent,  and  account  to  her 
therefor.     4.  That,   without  notice  to   his  principal,   and  in 
violation  of  his  duties  as  agent,  he  mingled  the  said  sum  of 
$15,000  with  his  own  funds,  and  never  kept  them  separate 
therefrom;  that  he  did  not  loan  out  the  money  for  her  to 
others,  but  used  it  in  all  respects  as  his  own,  employing  it  in 
hazardous  mining  and  stock  speculations  in  his  own  behalf, 
by  which  means  it  was  ultimately  lost.     5.  That  he  never 
paid  to  his  principal  any  part  of  said  $15,000,  or  the  inter- 
est thereon,  except  the  interest  to  October  1,  1878.     6.  That 
no  demand  for  an  accounting  of  said  moneys  was  ever  made 
upon  him  by  his  principal,  or  refused  by  him;  that  he  never 
informed  her  of  the  mingling  and  using  of  said  moneys  with 
his  own,  and  such  intermingling  and  use  were  never  ratified 
by  her,  the  said  principal.     7.  That  from  the  fifteenth  day  of 
August,   1877,   aforesaid,   up  to  the  date  of  his  principal's 
death,  viz. :  October  4,  1882,  he  held  and  managed  the  prop- 
erty collected   and  received  as  aforesaid,  as  her  agent,   to- 
gether with  the  rents,   income  and  dividends  thereof ;   and 
that  he  has  not  entered  any  of  the  said  rents  or  dividends, 
or   the   disbursements    connected   therewith,    in   his    account 
aforesaid,  but  has  specified  them  in  an  exhibit  filed  in  the 
estate  September  21,  1883.     8.  That  for  a  considerable  period 
the  rents  and  dividends  received  by  him  were  not  paid  over 
to  his  principal,  but  allowed  to  accumulate,  and  on  January 
1,  1881,  there  had  so  accumulated  and  remained  unpaid  net 
rents  and  dividends  amounting  in  all  to  the  sum  of  $11,727.67, 
with  interest;  that  thereafter  he  paid  over  the  current  rents 
and  dividends  up  to  May  1,  1882,  but  subsequently  there  ac- 
cumulated and  remained  unpaid  in  his  hands,  from  net  rents 
and  dividends,  the  sum  of  $1,004.75.     9.  That  the  same  facts 
existed  as  to  the  rents  and  dividends,  so  received  by  him  as 
aforesaid,  as  existed  with  reference  to  the  principal  and  orig- 
inal moneys  and  property  which  came  into  his  possession,  as 
found  in  and  by  the  third  and  fourth  findings  above.     10. 
That  his  principal  died,  and  he,  after  petitioning  therefor, 
was  appointed  the  special  administrator  of  her  estate  and 
duly  qualified,  and  at  and  after  such  qualification  he  was 

Prob.  Dec,  Vol.  I — H 


162  Coffey's  Probate  Decisions,  Vol.  1. 

possessed  of  sufficient  property  to  have  realized  and  taken 
into  his  possession,  as  such  special  administrator,  at  least  the 
sum  of  $1,004.75,  aforesaid.  11.  That  after  his  qualification 
as  special  administrator  he  received  and  disbursed  the  moneys 
set  forth  in  his  account  filed  herein,  and  afterward  paid 
over  the  balance  therein  stated  to  the  administrator  of  the 
estate,  M.  B.  Blake. 

And,  as  conclusions  of  law,  the  court  found :  1.  That  the 
indebtedness  of  said  Stevenson  to  said  decedent  was  not,  nor 
any  part  of  it,  barred  by  section  339,  Code  of  Civil  Pro- 
cedure, or  the  statute  of  limitations ;  2.  That  the  account 
should  not  be  settled  as  rendered,  but  the  said  Robert  Steven- 
son, as  such  special  administrator,  should  be  charged  with 
the  various  sums  of  money  and  accumulations  received  by 
him,  as  set  out  in  the  findings  of  fact,  with  interest;  and 
that  a  decree  should  be  entered  against  him  settling  his  ac- 
count at  a  total  balance  of  $37,218.74,  due  the  estate  of  Mar- 
garet Armstrong,  deceased,  from  him  as  special  adminis- 
trator thereof. 

Alfred  Wheeler,  attorney  for  special  administrator  (Stev- 
enson) ;  afterward  E.  D.  Saw.yer,  on  the  "Exceptions"  to 
the  account. 

J.  M.  Allen,  attorney  for  Frederick  James  Armstrong,  an 
heir  at  law. 

j\I.  C.  Blake,  attorney  for  Maurice  B.  Blake,  the  adminis- 
trator with  the  will  annexed,  for  the  "Exceptions." 

COFFEY,  J.  In  the  matter  of  the  application  for  the 
settlement  of  the  account  of  Robert  Stevenson,  as  special  ad- 
ministrator of  the  estate  of  Margaret  Armstrong,  deceased, 
the  special  administrator  had  no  right  to  use  the  funds  of 
the  decedent  as  his  own,  nor  to  mingle  them  with  his  own 
funds,  without  clear  authorization  from  her.  It  was  his  duty 
to  keep  them  separate  and  intact  and  free  from  any  liabil- 
ity such  as  he  incurred  in  the  use  of  his  own  moneys.  He 
should  have  pursued  with  exactitude  the  instructions  given 
as  to  them,  or  show  that  his  act  was  ratified,  with  full  knowl- 
edge on  the  part  of  the  decedent  of  the  nature  of  that  act. 


Estate  of  Armstrong.  163 

The  evidence  shows  that  the  authority  was  to  "loan  out" 
the  money,  which  seems  to  me  to  mean  that  he  was  to  in- 
vest for  her  and  to  account  therefor,  and  not  to  borrow  it 
for  his  own  purposes.  ]\Irs.  Armstrong  reposed  confidence 
in  him  to  judiciously  invest  her  funds,  and  this  confidence 
was  abused  when  he  placed  himself  in  the  position  of  a  debtor 
to  her,  without  fully  advising  her  of  the  risk  she  ran,  and 
affording  her  an  opportunity  of  knowing  that  he  was  sub- 
jecting her  funds  to  hazard,  and  depriving  her  of  the  means 
of  averting  catastrophe  to  her  fortune.  He  should  show 
that  he  did  so,  in  order  to  avoid  responsibility  for  the  loss 
his  conduct  caused  to  her.  Occupying  a  fiduciary  relation, 
the  statute  of  limitations  cannot  avail  as  a  defense;  at  least, 
not  unless  or  until  a  demand  and  refusal  are  shown. 

Lapse  of  time  is  no  bar  to  a  trust  clearly  established.  Pre- 
vost  V.  Gratz,  6  Wheat.  481,  5  L.  Ed.  311.  Is  this  trust 
clearly  established?  I  think  so.  See  extract  from  letter, 
page  48,  transcript: 

"It  leaves  a  balance  in  your  favor  of  $15,000,  besides  what 
has  accumulated  since  the  estate  was  fixed  up,  which  I  will 
loan  out  at  about  9  per  cent,  being  the  best  I  can  do  at 
present. ' ' 

Clearly,  the  ordinary  meaning  of  language  will  not  bear 
the  strain  that  "loan  out"  means  he  will  borrow  for  him- 
self, appropriate  to  his  own  use,  treat  as  a  personal  account. 
It  must  be  interpreted  that  he  will  invest  it  for  her  account. 
He  was  to  "loan  out,"  not  to  borrow.  He  had  no  other  in- 
structions. He  did  not  ad\'ise  her  of  the  risk  to  which  he 
was  subjecting  her  funds,  nor  of  his  mingling  the  funds  with 
his  own  indiscriminately:  See  vol.  2,  Trans.,  p.  70.  Mrs.  Mc- 
Lean testifies  that  her  sister,  Margaret,  wanted  her  brother, 
Robert,  to  "lay  out"  the  money.  She  reposed  in  him  great 
trust  and  confidence,  which  he  was  bound  to  use  with  the 
utmost  discretion,  lie  did  not  advise  her  of  the  hazardous 
nature  of  his  use  of  the  money,  nor  of  his  own  failing  con- 
dition (vol.  2,  Trans.,  pp.  62.  69-70,  77,  78.  80.  85,  86).  The 
evidence  is  by  no  means  clear,  is  very  vague  and  unsatis- 
factory, as  to  the  extent  of  ]Mr.  Hunter's  or  of  IMrs.  Arm- 
strong's knowledge  of  the   facts  in  time  to  retrieve  conse- 


164  Coffey's  Probate  Decisions,  Vol.  1. 

quences  of  Robert's  conduct  (vol.  2,  Trans.,  89,  STVo,  103, 
104).  Altogether,  he  failed  in  his  duty  to  protect  her  in- 
terest. 

Robert  Stevenson  was  the  trustee  of  Margaret  Armstrong; 
his  trusteeship  has  never  been  revoked ;  and  the  statute  of 
limitations  cannot  operate  in  his  favor.  He  is  clearly  liable 
for  loss.  His  account  should  not  be  allowed  as  rendered,  ex- 
cept the  item  for  attorney's  fee,  a  charge  properly  and  nec- 
essarily incurred.  Let  findings  be  prepared  in  conformity 
with  the  text  of  this  opinion. 


The  Decision  in  the  Principal  Case  was  affirmed  by  the  supreme 
court  of  California  in  69  Cal.  239,  10  Pac.  335,  where  it  is  held  that 
a  special  administrator,  who  is  individually  indebted  to  the  decedent, 
must  charge  himself  in  his  account  with  the  amount  of  such  indebted- 
ness. 


Estate  of  ELIZABETH  D.  TRAYLOR,  Deceased. 

[No.  4,705;    decided  January  11,  1887.] 

Claim  for  Counsel  Fees — Jury  Trial. — A  claim  of  an  attorney  for 
fees  for  services  rendered  an  estate  is  an  expense  of  administration,  and 
is  not  a  proper  matter  for  trial  by  jury.  But  the  claim  of  an  attor- 
ney for  fees  for  services  rendered  to  a  decedent  during  his  lifetime 
differs  materially  from  a  claim  for  services  rendered  to  the  estate. 

Claim. — The  Allowance  of  a  Claim  Against  Decedent  prima  facie 
establishes  its  correctness  and  validity,  and  shifts  the  onus  of  proving 
its  incorrectness  or  invalidity  upon  the  party  contesting  the  same. 

Claim — Jury  Trial. — The  Allowance  of  a  Claim  does  not  interfere 
with  the  question  of  the  right  to  a  trial  by  jury. 

Account — Jury  Trial. — An  Account,  as  Such,  is  a  Matter  to  be 
Settled  by  the  Court  without  a  jury. 

A  Claim  Arising  During  the  Lifetime  of  the  Decedent  is  a  matter 
which  may  be  segregated  from  the  account  of  the  executors. 

Claim. — The  Parties  are  Entitled  to  a  Jury  on  the  Trial  of  a  contest 
which  arose  during  the  lifetime  of  the  deceased,  and  at  the  trial  the 
claim  alone  should  be  submitted,  and  not  as  part  of  an  account  in 
which  it  is  set  forth. 

Elizabeth  D.  Traylor  died  in  San  Francisco,  a  resident 
thereof  and  leaving  estate  therein,  on  the  twenty-first  day  of 
October,  1885. 


Estate  of  Traylor.  165 

She  left  a  last  will  and  testament  bearing  date  July  20, 
1885,  and  a  codicil  thereto  dated  September  30,  1885. 

George  W.  Prescott,  P.  N.  Lilienthal  and  Robert  Harrison 
were  named  therein  as  executors. 

Upon  petition  filed  on  October  28,  1885,  the  will  and 
codicil  were  admitted  to  probate,  and  the  persons  named 
appointed  executors  thereof,  and  letters  testamentary  issued 
to  them  on  November  10,  1885. 

On  November  20,  1885,  George  W.  Prescott  resigned  his 
trust  as  executor,  and  the  two  remaining  executors  con- 
tinued to  act  as  such. 

Robert  Harrison,  one  of  the  executors,  presented  to  Hon. 
J.  V.  Coffey,  judge  of  the  probate  department  of  the  su- 
perior court,  in  the  first  instance  pursuant  to  section  1510, 
Code  of  Civil  Procedure,  for  allowance,  a  claim  against  the 
estate  for  the  sum  of  $8,250,  for  professional  services  ren- 
dered decedent  in  her  lifetime,  which  claim  was  allowed  by 
the  judge  on  March  5,  1886,  for  $7,250.  The  claim  was 
also  presented  to  the  other  executor  and  the  Judge,  under 
section  1496,  Code  of  Civil  Procedure,  and  by  them  allowed 
and  approved  for  said  sum  on  said  day. 

On  May  14,  1886,  the  executors  filed  an  exhibit,  pursuant 
to  section  1622,  Code  of  Civil  Procedure.  The  exhibit  con- 
tained a  statement  of  the  expenses  of  administration,  in 
which  was  an  item  "Retaining  fee  of  Swift  and  Harrison, 
as  counsel  for  estate  and  executors,  $1,000."  It  further 
contained  a  statement  of  claims  presented  against  the  estate 
and  allowed,  among  which  was  the  "claim  of  Robert  Har- 
rison, for  professional  services  as  attorney  and  counselor, 
rendered  Elizabeth  D.  Traylor,  in  her  lifetime,  allowed  for 
$7,250." 

On  May  18,  1886,  Elizabeth  H.  Siddall,  claiming  to  be 
sole  heir  of  decedent,  filed  a  contest,  on  various  grounds,  to 
various  items  in  the  exhibit,  among  them  the  two  above 
mentioned,  and,  as  to  those  two,  separately  demanded  a  jury 
trial  to  determine  the  merits  of  the  claims:  and,  as  to  the 
latter,  also  asked  that  proper  pleadings  be  framed  for  that 
purpose  by  the  respective  parties. 

On  September  29,  1886,  the  executors  filed  tlicir  fii-st 
annual  account,  which  contained  the  above-mentioned  items. 


166  Coffey's  Probate  Decisions,  Vol.  1. 

By  subsequent  amendment,  however,  the  names  of  Swift 
and  Harrison  were  stricken  out  from  the  first  item,  and 
that  of  John  F.  Swift  inserted  in  place  thereof. 

On  October  8,  1886,  said  Elizabeth  H.  Siddal  filed  her 
contest  to  the  same  items  in  said  account,  and  also  made 
a  similar  demand  for  jury  trials. 

The  motions  for  jury  trials  were  argued  and  submitted 
to  the  court  on  November  10,  1886,  and  on  January  11, 
1887,  the  motion  as  to  the  claim  of  John  F.  Swift  was  de- 
nied, and  the  one  as  to  the  claim  of  Robert  Harrison  granted. 
Subsequently,  the  latter  claim  was  transferred  to  depart- 
ment No.  1  for  trial. 

D.  W.  Douthitt,  for  motions;  also,  with  him,  J.  C.  Bates. 

W.  W.  Cope,  opposed,  for  executors. 

Robert  Harrison,  also  opposed,  for  executors. 

Selden  S.  Wright,  also  opposed,  for  certain  heirs. 

COFFEY,  J.  With  reference  to  the  motion  to  refer 
claims  to  jury:  I  have  come  to  the  conclusion  in  regard  to 
the  claims  of  John  F.  Swift,  for  counsel  fees,  for  services 
rendered  to  the  estate,  being  a  claim  for  legal  services  in- 
curred during  the  administration,  which  is  an  expense  of  ad- 
ministration, it  is  not  a  proper  matter  for  trial  by  jury. 
Motion  denied.  As  to  the  claim  of  Robert  Harrison,  for  legal 
services  rendered  in  the  lifetime  of  deceased :  This  differs 
materially  from  Mr.  Swift's  claim.  It  is  a  matter  which  may 
be  segregated  from  the  account,  so  if  it  be  submitted  to  a  jury 
it  should  be  submitted  alone  and  not  as  part  of  the  account. 
The  account  is  a  matter  to  be  settled  by  the  court  without  a 
jury,  that  is,  the  account  as  an  account.  This  claim  of  Mr. 
Harrison,  although  it  is  allowed  by  the  court  and  prima  facie 
established  by  reason  of  the  approval  of  the  court,  that  is  only 
a  shifting  of  the  onus,  that  does  not  interfere  with  the  ques- 
tion of  the  right  to  a  trial  by  jury. 

The  decision  of  the  court  is,  that  the  motion  for  a  jury 
trial  as  to  that  claim  be  and  it  is  granted.     Exception. 


Estate  of  Rothschild.  167 


Estate  of  GEORGIANA  ROTHSCHILD,  Deceased. 

[No.    3,944;     decided    May   25,    1885.] 

Letters  of  Administration — Revocation  in  Favor  of  Person  having 
Prior  Right. — Where  letters  of  administration  have  been  granted  to 
a  person  who  is  not  entitled  to  them  in  his  own  right,  and  who  was 
not  nominated  by  the  person  entitled,  they  will  be  revoked  upon 
the  application  of  the  person  entitled  to  letters. 

Georgiaua  Rothschild  died  in  La  Porte  county,  Indiana, 
a  resident  thereof,  and  leaving  personal  estate  in  San  Fran- 
cisco, on  April  1,  1883. 

On  February  3,  1885,  Asher  Frank  filed  a  petition  for 
letters  of  administration  upon  the  estate  of  the  decedent  in 
San  Francisco,  in  which  he  alleged  the  foregoing  facts,  and 
also  that  John  and  Rosalie  Summerfield  were  the  grand- 
parents of  the  decedent,  and  her  heirs  and  next  of  kin,  and 
resided  in  Indiana,  and  that  petitioner  was  the  great-uncle 
of  the  decedent,  and  that  the  heirs  had  authorized  him  to 
make  this  application. 

No  written  request  of  the  heirs  for  the  appointment  of 
petitioner  was  filed,  but  he  held  a  power  of  attorney  from 
the  grandparents  dated  January  23,  1885,  authorizing  him 
to  act  in  any  manner  that  he  saw  fit,  to  collect  their  inherit- 
ance from  the  decedent  for  them.  This  power  of  attorney' 
was  filed  April  10,  1885. 

The  estate  in  San  Francisco  consisted  of  $2,000,  in  the 
hands  of  Joseph  Rothschild.  On  February  17,  1885,  the 
application  of  Asher  Frank  was  granted,  and  he  was  ap- 
pointed administrator,  and  on  the  following  day  letters  of 
administration  were  issued  to  him. 

On  ]\Iarch  30,  1885,  Henry  Rothschild  filed  a  petition  for 
the  revocation  of  such  letters.  He  alleged  that  decedent 
was  the  infant  daughter  of  George  and  Bertha  Rothschild, 
both  deceased ;  that  petitioner  and  Mrs.  Nathan  Meyer,  resi- 
dents of  San  Francisco,  were  heirs  of  decedent;  that  peti- 
tioner was  decedent's  uncle  and  a  brother  of  her  father,  and 
]Mrs.  Nathan  Meyer  was  an  aunt  of  decedent,  and  a  sister 
of  her  father  and  of  petitioner;  that  Asher  Frank  was  a 
resident  of  Oakland;  that  decedent  was  a  minor  under  the 


168  Coffey's  Probate  Decisions,  Vol.  1. 

age  of  eighteen  years,  and  unmarried  at  the  time  of  her 
death,  and  that  the  money  left  by  her  was  inherited  from 
her  father,  who  had  previously  died  in  San  Francisco;  that 
no  notice  of  the  application  of  Asher  Frank  had  been  given 
to  petitioner,  or  to  Mrs.  Nathan  Meyer,  and  the  first  knowl- 
edge he  had  of  it  was  when  he  was  informed  by  Joseph 
Rothschild  that  Asher  Frank  had  been  appointed  adminis- 
trator. 

An  order  to  show  cause  was  issued  on  this  petition,  re- 
turnable on  April  10,  1885. 

On  that  day  the  administrator  filed  his  answer,  in  which 
he  denied  that  petitioner,  Henry  Rothschild,  and  Mrs. 
Nathan  Frank  were  heirs  of  decedent,  or  entitled  to  a 
distributive  share  of  her  estate,  and  alleged  that  the  de- 
cedent was  an  actual  resident  of  the  state  of  Indiana  at 
the  time  of  her  death ;  that  her  death  was  known  to  peti- 
tioner immediately  after  it  occurred,  and  petitioner  took 
no  steps  for  the  issuance  of  letters;  further,  that  John  and 
Rosalie  Summerfield  were  the  grandparents  of  decedent,  and 
next  of  kin  under  the  laws  of  Indiana. 

It  was  contended,  on  behalf  of  the  administrator,  that 
letters  were  properly  granted  to  him,  under  section  1377, 
Code  of  Civil  Procedure,  which  provides  that  "letters  of 
administration  must  be  granted  to  any  applicant,  though  it 
appears  that  there  are  other  persons  having  better  rights 
to  the  administration,  when  such  persons  fail  to  appear 
and  claim  the  issuance  of  letters  to  themselves";  and  that 
the  letters  should  not  be  revoked.  Counsel  cited  sections 
1383  and  1386,  Code  of  Civil  Procedure,  the  first  of  which 
provides  in  substance  that  when  letters  have  been  granted 
to  any  other  person  than  the  surviving  husband  or  wife, 
child,  father,  mother,  brother  or  sister  of  the  intestate,  any 
one  of  them  who  is  competent  may  obtain  the  revocation  of 
the  letters  and  be  entitled  to  the  administration;  and  the 
latter  of  which  provides  that  "the  surviving  husband  or 
wife,  when  letters  have  been  granted  to  a  child,  father, 
brother  or  sister  of  the  intestate,  or  any  of  such  relatives, 
when  letters  have  been  granted  to  any  other  of  them,  may 
assert  his  prior  right  and  obtain  letters  of  administration, 
and  have  the  letters  before  granted  revoked,"  and  claimed 


Guardianship  of  Smith.  169 

that  when  letters  are  once  granted  only  the  persons  above 
named  could  apply  for  their  revocation. 

On  behalf  of  the  petition  for  revocation,  section  1365, 
Code  of  Civil  Procedure,  was  cited,  to  the  effect  that  let- 
ters could  only  be  granted  to  some  one  or  more  of  the  per- 
sons mentioned  in  that  section,  and  that  relatives  of  the  de- 
ceased are  "entitled  to  administer  only  when  they  are  en- 
titled to  succeed  to  his  personal  estate,  or  some  portion  there- 
of"; and  that  the  administrator  did  not  come  within  subdivi- 
sion 7  of  that  section,  giving  the  right  to  administer  to  "the 
next  of  kin  entitled  to  share  in  the  distribution  of  the  es- 
tate," petitioner  and  his  sister  being  the  only  heirs  of  de- 
cedent. Counsel  further  contended  that  under  section  1379, 
Code  of  Civil  Procedure,  the  administrator,  not  being  entitled 
to  letters  in  his  own  right,  could  only  have  been  appointed 
"at  the  written  request  of  the  person  entitled,  filed  in  the 
court,"  and  that  no  such  written  request  had  been  filed. 

Joseph  Rothschild,  for  petitioner. 

William  H.  Sharp,  opposed,  for  administrator. 

COFFEY,  J.  Upon  the  facts  presented  to  the  court,  the 
petition  for  revocation  should  be  granted,  and  it  is  so  or- 
dered. 


On  the  Revocation  of  Letters  of  Administration  on  the  application 
of  the  person  primarily  entitled  to  letters,  see  1  Eoss  on  Probate 
Law  and  Practice,  379-386. 


Estate  and    Guardianship    of    GERTRUDE    A.    SMITH, 

Minor. 

[No.  3,697;     decided  February  24,  1885.] 

Guardianship — ^Welfare  of  Child. — The  First  Point  to  be  Considered, 

in  adjudging  the  custody  or  guardianship  of  a  minor,  is  the  best 
interests  of  the  child  with  respect  to  its  temporal,  mental  and  moral 
welfare. 

Guardianship — Preference  of  Minor. — In  determining  what  is  for 
the  best  interests  of  a  child,  in  adjudging  its  custod}'  or  guardian- 
ship, the  court  may  consider  the  child 's  preference,  if  it  is  of 
suflSieient  age  to  form  an  intelligent  preference. 


170  Coffey's  Probate  Decisions,  Vol.  1. 

Guardianship — Welfare  of  Child. — In  guardianship  matters  the  court 
acts  for  and  on  behalf  of  the  child,  and  must  regard,  as  the  paramount 
consideration,  the  interest  and  welfare  of  the  child.  To  this  every 
other   consideration   must  yield. 

Guardianship. — The  Father  Is  Prima  Facie  Entitled  to  the  Custody 
of  His  Child.  But  this  is  not  an  absolute  right;  it  may  be  controlled 
by  other  considerations;  and,  if  the  father  is  unable  or  unfit  to  take 
charge  of  the  child  and  educate  it  suitably,  the  court  will  not  inter- 
fere to  take  the  child  from  those  who  are  fit  and  able  to  so  main- 
tain and  educate  it. 

Guardianship — Father's  Right  to  Child's  Custody. — As  a  general 
rule,  courts  assent  to  the  proposition  that  natural  right  and  public  pol- 
icy, as  well  as  the  safety  of  the  social  structure,  require  that  the 
father  should  have  the  custody  of  his  child.  But  this  is  not  impera- 
tive upon  the  court;    it  bends  to  the  interests  of  the  child. 

Guardianship — Considerations   in   Awarding   Custody   of   Child. — It 

is  within  the  court's  sound  discretion  whether  the  custody  of  a  child 
will  be  given  to  the  father.  The  court  should  consider  not  only  the 
father's  fitness,  but  the  condition  of  the  child  with  its  present  custo- 
dians, its  relation  to  them,  the  present  and  prospective  provision  for 
its  support  and  welfare;  the  facts  as  to  its  present  home — its  dura- 
tion, and  whether  with  the  father's  consent,  and  upon  understanding  of 
permanency;  the  strength  of  the  ties  formed,  and  the  child's  wishes 
if  it  is  of  an  age  of  discretion. 

Guardianship. — Where  the  Best  Interests  of  a  Child  require  that 
it  should  remain  in  the  home  where  it  has  been  fostered  from  in- 
fancy, that  consideration  will  be  deemed  paramount  to  the  father 's 
natural  right,  although  the  father  is  in  every  way  competent  and 
suitable. 

Guardianship. — The  Custody  of  Minors  is  Always  Within  the 
Discretion  of  the  court;  and  this  discretion  is  to  be  exercised  in 
the  light  of  the  particular  and  peculiar  circumstances  of  each  case. 
The  court  is  not  bound  to  deliver  the  custody  to  any  particular  per- 
son, not  even  the  father. 

Guardianship — Election  and  Nomination  by  Child. — It  has  become 
the  rule,  in  awarding  the  custody  of  a  minor,  to  give  the  child,  if 
of  proper  age,  the  right  of  election  in  the  matter.  In  California, 
fourteen  years  is  the  age  fixed,  when  the  minor  has  a  right  of  nomi- 
nation, subject  to  the  court's  approval;  and  the  law  also  permits 
a  minor,  "if  of  sufficient  age  to  form  an  intelligent  preference,"  to 
express  such  preference,  which  may  be  considered  by  the  court. 

Guardianship — Child's  Choice  of  Custodian. — Mere  mental  pre- 
cocity is  not  the  test  of  a  child 's  capacity  to  express  a  choice  of 
custodian;  acuteness  of  apprehension,  sharpness  of  intellect  on  the 
part  of  the  child,  will  not  alone  be  sufficient  for  the  judge.  The 
minor   must   be   capable   of   exercising   a    discretion   in   the   premises; 


Guardianship  of  Smith.  171 

its  mere  impulses  will  not  weigh.  In  this  case,  a  child  thirteen  years 
and  eight  months  old  was  held  "of  a  sufficient  age  to  form  an  intel- 
ligent preference,"  within  the  meaning  and  intent  of  section  246, 
Civil  Code,  relating  to  the  custody  and  guardianship  of  minors. 

Guardianship. — The     Welfare    of   a    Minor   Means    Its    Permanent, 

not  temporary,  welfare.  The  court  is  governed  by  that  which,  look- 
ing to  the  previous  condition,  and  the  future  continued  residence 
of  the  child,  will  contribute  to  its  permanent  happiness  and  welfare. 

Guardianship — Examination  of  Minor. — In  this  case,  in  accordance 
with  the  practice  of  the  court  in  matters  of  guardianship,  the  minor 
was  examined,  separate  and  apart,  at  length,  first  by  the  respective 
counsel  and  the  judge,  with  the  official  reporter;  then  by  the  judge 
alone,  counsel  being  absent;  and  finally  was  requested  to  express 
her  own  wishes  in  writing,  she  being  alone  and  without  any  influ- 
ence whatever.  Her  written  views,  with  her  transcribed  testimony, 
were  then  filed  as  part  of  the  record. 

Guardianship. — One  of  the  Objects  of  the  Court's  Private  Exam- 
ination of  the  Minor,  in  guardianship  matters,  is  to  discover  the 
child's  capacity;  its  appreciation  of  the  object  of  the  proceedings; 
the  strength  of  the  natural  affections,  and  its  idea  of  filial  duty  and 
parental  right;  and  the  child's  freedom  of  expression,  that  is,  ab- 
sence of  influence  or  teachings  adverse  to  parents.  The  court  looks 
with  distrust  upon  any  choice  of  the  minor  contrary  to  the  natural 
affections  in  favor  of  a  parent. 

Guardianship  Awarded  to  Aunt  Rather  than  to  Father. — In  this 
case  an  application  for  guardianship  of  a  minor  was  filed  by  its 
aunt,  and  a  counter-application  and  opposition  presented  by  its 
father,  the  mother  being  deceased.  The  minor  was  aged  thirteen 
years  and  eight  months,  and  held  to  have  proven  herself  fully  ca- 
pable of  expressing  an  ' '  intelligent  preference ' '  in  the  matter,  which 
she  did  in  favor  of  her  aunt,  after  undergoing  a  thorough  exam- 
ination. The  child  was  born  in  the  dwelling  of  her  aunt  while  her 
parents  were  members  of  the  aunt's  domestic  circle;  and  the  mother 
and  child  ever  afterward  continued  to  live  with  the  aunt  until  the 
mother's  decease,  when  these  proceedings  were  instituted.  The 
child 's  mother  had,  some  years  before  her  death,  obtained  a  divorce 
from  the  father,  by  default,  and  with  it  the  custody  of  the  child; 
and  it  was  her  last  wish  that  her  child  should  remain  with  the  aunt. 

Guardianship  Awarded  to  Aunt — Right  of  Father  to  Visit  Ward. — • 

In  this  case  the  court  found  that  the  best  interests  of  the  child  re- 
quired that  it  should  remain  with  the  aunt,  with  the  right  of  tlie 
father  to  visit  and  enjoy  the  society  of  the  child  at  all  reasonable 
times;  and,  in  awarding  the  minor's  custody  to  the  aunt,  the  court 
said  that  the  parties  ought  to  reach  an  amicable  understanding 
whereby  the   child   should   spend   part   of   her   time   with   her   father. 


172  Coffey's  Probate  Decisions,  Vol.  1. 

and  so  allow  opportunities  for  mutual  affections  and  interests  to  grow 
up  between  her  and  her  paternal  relatives. 

In  the  above  matter,  Caroline  A.  Taber  filed  a  petition  on 
October  16,  1884,  praying  to  be  appointed  guardian  of  the 
person  and  estate  of  the  minor,  Gertrude  A.  Smith ;  setting 
forth,  among  other  things,  that  the  minor  had  no  guardian 
appointed  by  will;  that  its  mother  was  deceased;  that  the 
mother  in  her  lifetime  had  been  divorced  from  the  father 
of  the  child,  and  had  been  awarded  the  custody  of  the  minor ; 
and  that  the  only  relatives  of  the  minor  were  the  petitioner, 
who  was  the  aunt  of  the  minor,  petitioner's  husband,  and 
the  children  of  petitioner.  Upon  the  twenty-second  day  of 
October,  1884,  Henry  L.  Smith  filed  a  petition  for  the 
guardianship  of  the  person  and  estate  of  the  minor,  alleging 
that  he  was  the  child's  father  and  entitled  to  be  appointed 
the  guardian,  and  giving  the  names  of  the  child's  relatives 
as  they  were  set  out  in  the  aunt's  petition  aforesaid. 

On  November  19,  1884,  Smith  filed  objections  to  the  grant- 
ing of  Mrs.  Taber 's  petition,  alleging;  first,  that  he  was  the 
father  of  the  minor,  and  entitled  to  guardianship  in  prefer- 
ence to  Mrs.  Taber,  the  child's  mother  being  deceased;  sec- 
ond, that  Mrs.  Taber  was  unsuitable  to  be  guardian;  third, 
that  it  was  for  the  best  interests  of  the  minor,  and  most  con- 
ducive to  its  temporal,  mental  and  moral  welfare,  that  he 
(Smith)  should  be  appointed  guardian;  and  fourth,  that  it 
was  not  the  minor's  best  interests,  etc.,  that  Mrs.  Taber  be 
made  guardian.  Upon  September  8,  1885,  the  court,  in  con- 
formity with  the  opinion  below,  made  an  order  and  decree 
appointing  Mrs.  Taber  guardian ;  and  in  the  decree  further 
ordered  that :  ' '  Henry  L.  Smith,  father  of  minor,  be  and  he 
is  hereby  allowed  to  visit  and  enjoy  the  society  of  the  said 
minor,  at  all  reasonable  hours,  and  to  take  her  to  fit  and 
proper  places  with  him  at  reasonable  times." 

Letters  of  guardianship  were  issued  to  Mrs.  Taber  Octo- 
ber 10,  1885. 

A.  N.  Drown,  attorney  for  father,  H.  L.  Smith. 

J.  E.  McElrath,  attorney  for  aunt,  Mrs.  C.  A.  Taber. 

COFFEY,  J.  Gertrude  A.  Smith,  the  minor  here,  was 
born  March  19,  1871,  in  this  city,  in  the  dwelling-house  of 


Guardianship  of  Smith,  173 

Jacob  S.  Taber,  the  father  and  mother  of  the  minor  being 
inmates  of  the  domestic  circle,  the  mother  a  sister  of  Mrs. 
Caroline  A.  Taber,  one  of  the  petitioners  here,  and  the  wife 
of  Jacob  S.  Taber.  At  the  time  of  the  birth  of  Gertrude 
the  family  consisted  of  Mr.  and  Mrs.  Taber,  Mr.  and  Mrs. 
Smith,  and  the  only  child  of  the  Tabers ;  subsequently,  an- 
f'ther  child  was  born,  and  while  the  two  families  remained 
together  there  were  three  children  and  the  grown  persons, 
all  living  in  comfort  and  in  harmony.  Subsequently,  in 
about  two  years  thereafter,  the  family  moved  to  Oakland, 
and  there  resided  for  several  years,  until  at  the  desire  of 
i^he  ladies,  Mr.  Taber  decided  to  break  up  housekeeping,  and 
removed  to  the  Palace  Hotel  in  San  Francisco.  Mr.  Smith 
strenuously  objected  to  this  course,  as  he  was  averse  to 
hotel  life,  but  his  wife  persisting  in  her  purpose,  he  per- 
mitted her  to  take  up  her  abode  with  her  child  in  the  family 
of  Mr.  Taber,  at  the  hotel,  he  remaining,  as  he  has  since  re- 
mained, in  Oakland,  and  living  with  his  mother,  an  aged 
and  estimable  lady.  Mr.  Smith  frequently  visited  his  wife 
and  child  in  San  Francisco,  and  treated  them  with  respect 
and  consideration ;  but  after  a  while  his  wife  instituted  a 
suit  for  divorce  on  the  ground  of  failure  to  provide,  which 
he  did  not  resist,  and  the  divorce  was  granted,  and  the  cus- 
tody of  the  child  awarded  to  the  mother.  There  is  reason, 
from  the  evidence,  to  believe  that  the  result  of  this  suit  was 
reached  by  mutual  understanding;  but  however  this  may 
have  been,  the  record  must  speak  for  itself.  The  parties  to 
the  suit  continued  friendly,  and,  indeed,  throughout,  Mr. 
Smith's  conduct  was  amiable  and  conciliatory.  The  main 
burden  of  the  support  of  wife  and  child  was  borne  by  Mr. 
Taber,  although  many  items  for  tuition,  clothing,  etc.,  were 
paid  by  Mr.  Smith.  In  August,  1884,  while  Mrs.  Smith, 
Mrs.  Taber  and  the  children  were  in  the  country,  the  mother 
of  the  minor  died  at  a  place  called  Wawona,  a  station 
coming  out  of  the  Yosemite  Valley.  After  this  event  ]\Ir. 
Smith  desired  to  obtain  the  custody  of  his  child,  and  nego- 
tiations between  himself  and  the  aunt-applicant  were  carried 
on  for  a  long  time ;  but  failing  of  amicable  arrangement  cul- 
minated in  these  proceedings.  All  the  parties  seem  to  be  of 
good  social  standing,  and.  as  the  matter  is  before  the  court. 


174  Coffey's  Probate  Decisions,  Vol.  1. 

they  are  all  entitled  to  respect.  Mr.  Smith  occupies  a  sta- 
tion of  trust,  secretary  of  the  board  of  trade,  with  good 
salary  and  fair  prospects.  Mr.  Taber,  the  husband  of  the 
other  applicant,  is  president  of  the  same  board,  and  is  in 
constant  business  relations  with  the  father  of  the  minor  and 
on  friendly  terms  with  him.  It  should  seem  that,  under 
such  circumstances,  this  controversy  should  have  been  set- 
tled out  of  court,  and  without  recourse  to  the  harsh  and 
costly  procedure  of  the  law ;  but  it  is  reserved  now  for  the 
court  to  pass  upon  the  facts  and  apply  the  law.  In  doing 
so,  I  may  say  in  the  language  of  Brevver,  J.,  in  Chapsky  v. 
Wood  (26  Kan.  651,  40  Am.  Rep.  321,  and  note),  a  petition 
of  a  father  for  the  possession  of  his  minor  child,  that : 
"Counsel  have  in  their  arguments  expressed  very  feelingly 
and  truthfully  the  embarrassments  and  difficulties  which 
surround  the  decision  of  a  case  like  this. ' ' 

And  further  to  quote  from  the  same  learned  judge  ,  I  may 
apply  his  description  of  the  minor  in  that  case  to  the  one 
at  bar :  ' '  The  burden  of  the  case  is  that  the  decision  is  one 
which  involves  the  future  welfare  of  a  little  girl;  and  I 
think  no  man  can  look  upon  the  face  of  a  bright  and  happy 
little  girl,  like  the  one  before  us,  and  come  to  the  decision  of 
a  question  which  may  make  or  mar  her  future  life,  without 
hesitation  and  feeling;  certainly  we  are  not  so  insensible  as 
to  be  able  to  do  it"  (page  652). 

Gertrude  Smith  is  certainly  entitled  to  the  description 
here  quoted.  She  is  more  than  ordinarily  intelligent  and 
advanced  in  study;  she  has  a  happy  temperament,  a  cheer- 
ful temper,  a  firm  yet  entirely  reasonable  disposition,  and  a 
full  appreciation  of  the  position  which  she  is  placed  in  by 
these  proceedings.  She  was  examined  for  hours,  first  by  the 
respective  counsel  themselves,  and  the  judge  with  the  official 
reporter  being  alone;  then  by  the  judge  without  the  inter- 
vention of  counsel,  they  being  absent;  finally  she  was  asked 
to  remain  entirely  by  herself,  and  without  any  influence 
whatever,  to  write  her  own  views  and  indicate  her  own  choice 
of  custodian,  which  she  did  in  plain  and  concise  terms,  as 
hereinafter  transcribed.  The  first  point  to  be  considered 
by  the  court  is,  according  to  section  246  of  the  Civil  Code 
of  California,  "tlie  best  interest  of  the  child  in  respect  to 


Guardianship  of  Smith.  175 

its  temporal,  and  its  mental  and  moral  welfare";  and  "if 
the  child  be  of  a  sufficient  age  to  form  an  intelligent  prefer- 
ence, the  court  may  consider  that  preference  in  determining 
the  question." 

This  court  acts  for  and  on  behalf  of  the  child,  and  must 
regard  as  the  paramount  consideration  the  interests  and  wel- 
fare of  the  child.  To  this  every  other  consideration  must 
yield.  There  is  no  doubt,  as  was  said  by  the  eminent  Chief 
Justice  Shaw,  of  Massachusetts,  in  Pool  v.  Gott  et  ux.  (Au- 
gust 20,  1851,  at  Chambers;  14  Monthly  Law  Reporter  (Vol. 
4,  New  Series),  p.  269;  not  elsewhere  reported),  that  the 
father  is  prima  facie  entitled  to  the  custody  of  the  child. 
This  is  the  law  of  California  (Code  Civ.  Proc,  sec.  1751; 
Civ.  Code,  sec.  197)  ;  but  this  is  not  an  absolute  right;  it 
may  be  controlled  by  other  considerations;  if  unable  or  un- 
fit to  take  charge  of  the  child  and  educate  it  in  a  suitable 
manner,  the  court  will  not  interfere  to  take  the  child  from 
the  care  of  persons  who  are  fit  and  able  to  maintain  and 
educate  it  properly ;  but  it  may  be  said  in  this  case,  as  Chief 
Justice  Shaw  said  in  the  one  before  him,  this  is  an  excep- 
tion which  need  not  here  be  considered,  for  'the  evidence 
shows  in  this  case  that  the  father  of  Gertrude  is  in  a  good 
situation,  pecuniary,  domestic  and  social,  and  of  a  character 
and  reputation  against  which  no  objection  can  be  made. 

On  the  other  hand,  the  aunt-applicant  and  her  husband 
are  persons  of  respectability,  in  sufficient  pecuniary  circum- 
stances, and  have  so  far  mainly  educated  and  guarantee 
hereafter  to  educate  the  child  in  a  proper  manner.  In  their 
family  the  child  has  been  reared  from  her  birth,  and,  as  she 
says,  she  "has  known  no  other  home."  To  them  the  child 
is  devotedly  attached,  as  appears  by  her  private  examina- 
tion, conducted  with  great  care  and  thoroughness,  and  with 
an  earnest  endeavor  on  the  part  of  the  examiners  to  elicit 
the  exact  truth;  and  I  am  satisfied,  as  Judge  Shaw  said  in 
that  case,  "that  a  termination  of  this  relation  would  be,  for 
a  long  time  at  least,  the  cause  of  great  suffering  to  her  and 
them"  (14  Law  Rep.  269,  270,  271).  But  the  counsel  for 
the  father-applicant  contends  for  the  natural  right  to  the 
custody  of  the  child,  as  expressed  in  the  Code  of  Civil  Pro- 
cedure (section  1751)  and  the  Civil  Code  (section  197)  ;  and 


176  Coffey's  Probate  Decisions,  Vol.  1. 

the  learned  counsel  argues  strenuously  that  his  client  has 
done  nothing  to  impair  that  right,  and  that  the  court  is  bound 
now  to  respect  the  assertion  of  the  father's  right  and  to  re- 
spond to  his  demand  by  delivering  to  him  the  minor.  Both 
natural  right  and  public  policy,  says  counsel,  as  well  as  the 
safety  of  the  social  structure,  require  that  the  father  should 
have  the  custody  of  the  child  (Schouler,  Dom.  Rel.,  cited). 
As  a  general  rule  courts  assent  to  such  demands,  but  they 
are  not  imperative  upon  the  court.  As  was  said  by  Judge 
Finn,  in  the  matter  of  the  Piercy  minor,  the  custody  is  al- 
ways within  the  discretion  of  the  court — a  discretion  to  be 
exercised  in  the  light  of  the  particular  and  peculiar  circum- 
stances of  each  case.  The  court  is  not  bound  to  deliver  the 
infant  over  to  any  particular  person,  for  it  is  not  a  matter 
of  right  which  even  the  father  himself  can  claim  at  the  hands 
of  the  court  as  against  the  interest  of  the  child.  In  the  case 
of  Irma  Linden,  Judge  Myrick  [the  predecessor  of  Judges 
Finn  and  Coffey  in  the  probate  forum,  San  Francisco]  de- 
cided that  where  the  father  had  intrusted  his  infant  daugh- 
ter to  the  custody  of  an  aunt,  at  the  request  of  his  dying 
wife,  that  when  the  child  had  been  a  member  of  the  aunt's 
family  for  six  years,  the  custody  would  not  be  changed  even 
in  favor  of  the  father,  who  appeared  to  the  court  to  be  en- 
tirely competent  to  support  and  educate  his  child.  Judge 
Myrick 's  decision  was  placed  on  the  ground  that  the  best 
interests  of  the  child  required  that  she  should  remain  in  the 
home  where  she  had  remained  from  infancy,  and  that  con- 
sideration was  deemed  by  the  court  paramount  to. the  father's 
natural  right. 

This  decision  is  in  accord  with  the  best  American  author- 
ities, and  Judge  Finn  [the  predecessor,  in  the  probate  de- 
partment of  Judge  Coffey]  thought  it  correctly  stated  the 
law.  The  cardinal  principle  relative  to  these  matters  is  to 
regard  the  benefit  of  the  infant;  to  make  the  welfare  of  the 
child  paramount  to  the  claims  of  either  parent  (Schouler, 
Dom.  Rel.,  248),  and  the  primary  object  of  the  American 
decisions  is  to  secure  the  welfare  of  the  child  and  not  the 
special  claims  of  the  parent  (Schouler,  Dom.  Rel.,  sec.  248). 
It  is  sometimes  a  cjuestion   (says  Schouler,  Dom.  Rel.,  sec. 


Guardianship  of  Smith.  177 

250),  in  proceedings  relative  to  the  custody  of  minors,  how 
far  the  child's  own  wishes  should  be  consulted.  AVhere  the 
object  is  simply  that  of  custody,  the  rule,  though  not  arbi- 
trary, rests  manifestly  upon  a  principle  elsewhere  often  ap- 
plied, namely :  That  after  a  child  has  attained  to  years  of 
discretion  she  may  have,  in  case  of  controversy,  a  voice  in 
the  selection  of  her  own  custodian ;  the  practice  is  to  give  the 
child  the  right  to  elect  where  she  will  go,  if  she  be  of  proper 
age.  What  is  proper  age!  Fourteen  years  is  the  age  in- 
dicated by  the  code  (Code  Civ.  Proc,  sec.  1748)  at  which 
the  minor  has  the  right  of  nomination,  subject  to  the  court's 
approval.  The  Civil  Code  (section  246)  allows  the  minor, 
"if  of  sufficient  age  to  form  an  intelligent  preference,"  to 
express  such  preference,  which  expression  may  be  consid- 
ered by  the  court  in  determining  the  question  of  custody. 
Let  us  inquire,  now,  what  is  meant  by  "intelligent  prefer- 
ence." Mere  mental  precocity,  as  was  observed  by  Lord 
Chief  Justice  Cockburn  in  Ex  parte  Barford  (8  Cox  C.  C. 
405,  408,  9  Week.  Rep.  99,  3  L.  T.,  N.  S.,  467),  is  not  the 
test  of  the  capacity  of  the  child  to  express  effectually  a  choice 
of  custodian.  If  the  child  have  arrived  at  an  age  to  exer- 
cise a  discretion  in  the  premises,  her  wish  may  be  consulted; 
but  acuteness  of  apprehension,  sharpness  of  intellect  alone, 
is  not  sufficient  to  justify  the  judge  in  confirming  her  choice 
The  action  of  the  court  will  not  be  controlled  by  the  mere 
impulses  of  a  child  of  tender  years.  The  welfare  of  the  child 
means  the  permanent  and  not  the  temporary  welfare.  It 
is  not  what  will  please  or  gratify  the  child  for  a  day  or  an 
hour  which  is  to  govern  the  court,  but  that  which,  looking 
to  its  previous  condition  and  to  its  future  continued  resi- 
dence, will  contribute  to  its  permanent  happiness  and  wel- 
fare. Thorndike  v.  Rice,  Supreme  Court  Massachusetts,  14 
Law  Rep.,  N.  S.,  19 ;  opinion  by  Mr.  Justice  Bigelow.  One 
of  the  objects  of  the  private  examination  is  to  discover  how 
far  the  child  is  capable;  her  appreciation  of  the  situation 
in  which  she  is  placed;  the  strength  of  her  natural  affec- 
tions; her  idea  of  filial  duty  and  of  parental  right;  her  free- 
dom of  expression,  i.  e.,  freedom  from  influence  adverse  to 
her  father   which   might   have  taught   her  to   determine  in 

Prob.  Dec,  Vol.  1—12 


178  Coffey's  Probate  Decisions,  Vol.  1. 

favor  of  another.  The  court  is  concerned  to  ascertain  her 
real  desire;  her  free,  voluntary  choice  of  custodian;  and  so 
natural  is  the  tendency  of  a  child,  normally  constituted,  to 
seek  the  protection  of  the  author  of  its  being,  that  the  court 
looks  with  distrust  upon  any  choice  to  the  contrary. 

Frequently  courts  have  conformed  to  the  wishes  of  minors 
under  the  age  of  fourteen,  as  in  the  case  of  Rex  v.  Smith, 
2  Strange,  982,  cited  in  the  Matter  of  the  McDowles,  8  Johns. 
328,  331,  where  a  boy  under  fourteen  was  brought  up  on 
habeas  corpus,  sued  out  by  his  father  against  his  aunt,  but 
the  court  merely  left  the  boy  at  liberty  to  go  where  he  pleased, 
and  the  boy  chose  to  stay  with  his  aunt. 

In  the  Matter  of  the  McDowles  the  infants  were  respec- 
tively eleven  and  eight  years  of  age,  and  yet  the  court  de- 
clared they  were  at  liberty  to  go  where  they  please.d,  and  the 
chief  justice,  asking  the  infants  where  they  chose  to  go,  they 
answered  that  they  wished  to  return  to  their  masters;  after- 
ward, upon  the  suggestion  of  the  counsel  for  the  father,  that 
improper  means  and  constraint  had  been  used  to  influence 
their  election,  and  that  the  answers  were  not  freely  given  by 
them  to  the  court,  three  counselors  were  appointed  to  exam- 
ine the  boys  and  discover  their  real  desire;  thereafter  the 
examiners  reported  to  the  court  that  the  boys,  after  being 
carefully  informed  of  the  purpose  of  the  inquiry,  expressed 
a  decided  and  unequivocal  desire  to  return  to  their  masters, 
and  a  strong  and  unaccountable  repugnance  to  go  back  to 
their  father,  and  the  court  so  ordered  (8  Johns.  332). 

In  the  State  v.  Libbey,  44  N.  H.  321,  82  Am.  Dec.  223,  it 
w^as  held  to  be  within  the  sound  discretion  of  the  court, 
w^hether  the  custody  of  the  child  will  be  given  to  the  father, 
and  in  determining  the  question  the  court  should  consider 
not  only  the  fitness  of  the  father  for  the  trust,  but  the  con- 
dition of  the  child  with  the  person  from  whose  custody  it 
is  sought  to  be  taken,  its  relation  to  them,  the  present  and 
prospective  provision  for  its  support  and  welfare ;  the  length 
of  its  residence  there,  and  whether  with  the  consent  of  its 
father,  and  the  understanding,  tacit  or  otherwise,  that  it 
should  be  permanent;  the  strength  of  the  ties  that  have  been 
formed  between  them,  and,  if  the  child  has  come  to  years 


Guardianship  of  Smith,  179 

of  discretion,  her  wishes  in  the  matter.  This  is  a  clear  enun- 
ciation of  the  law,  and  commends  itself  to  one's  sense  of  jus- 
tice (In  re  Scarritt,  76  Mo.  593,  43  Am.  Rep.  768),  and  it 
has  been  recognized  as  correct  doctrine  in  every  well-con- 
sidered American  case. 

Gertrude  Smith  is  of  sufficient  age  to  form  an  intelligent 
preference;  she  is  within  a  short  interval  of  the  time  when 
she  will  have  the  right  of  nomination;  her  preference  has 
been  expressed,  and  the  transcript  of  her  testimony  occupies 
one  hundred  and  five  pages  of  legal  cap  paper,  and  has  been 
examined  carefully  by  this  court.  In  the  private  examina- 
tion the  judge  strenuously  endeavored  to  impress  upon  the 
mind  and  heart  of  this  child  her  filial  obligation,  her  duty 
to  her  surviving  parent,  the  strength  of  his  affection  for  her, 
his  kindn^s  to  her,  and  his  natural  right  to  her  custody,  and 
his  ability  and  willingness  to  provide  for  her  in  every  way 
(see  page  73  and  following  pages  of  the  Reporter's  Tran- 
script of  Testimony)  ;  but,  while  professing  respect  for  her 
father,  she  resolutely  refused  to  elect  him  as  her  guardian, 
declaring  that  in  no  wise  was  her  refusal  inspired  by  any 
influence,  save  her  own  judgment  of  what  was  best  for  her 
interests.  In  order  to  illustrate  her  determination.  I  will 
quote  from  her  testimony  (Trans.,  pp.  90-93)  : 

The  Court  (questioning) — "It  is  a  very  serious  matter  for 
me  to  decide  these  questions.  I  don't  want  to  decide  so  that 
hereafter  you  will  say  that  my  decision  was  unjust  or  unfair 
to  you,  or  inconsistent  with  your  happiness;  nor  do  I  want 
your  father  to  say,  if  I  should  decide  against  him,  that  my 
decision  was  not  right,  and  not  based  on  sufficient  grounds. 
Do  you  understand  that  ? ' '  Ans.— ' '  Yes,  sir. ' '  The  Court— 
"You  understand,  also,  that  the  law  allows  you  to  say  some- 
thing about  what  you  prefer?"  Ans.— "Yes,  sir."  .  .  .  . 
The  Court — "You  have  reasoned  over  this  matter,  you  say?" 
Ans. — "I  have  thought  a  good  deal,  and  have  come  to  a  con- 
clusion which  I  think  I  can  never  change,  am  certain  of  that. 
That  conclusion  is  that  I  want  to  live  with  my  aunt,  and 
don't  want  to  go  to  my  father."  (Page  94,  this  testimony 
I  here  condense,  preserving  the  language,  avoiding  repeti- 
tions.)    In  answer  to  the  Court — "If  you  should  decide  to 


180  Coffey's  Probate  Decisions,  Vol.  1. 

give  me  to  my  father,  I  don't  think  I  will  be  reconciled  to 
it  in  a  few  months,  nor  say  that  you  were  right,  and  under- 
stood better  than  I.  I  should  be  very  unhappy  at  such  a  de- 
cision. Indeed,  I  would  feel  very  bad  about  it. "  The  Court 
(page  96) — "Don't  you  think  your  father  has  some  feelings, 
too  1  Didn  't  you  ever  consider  that  ?"....  Ans. — ' '  I  feel 
this  way :  I  am  sure  he  would  not  feel  any  the  worse  for  see- 
ing me  regularly,  as  he  has  always  done,  and  maybe  stay 
with  him  a  week  or  two,  and  something  like  that,  and  then 
stay  sometime  with  auntie,  and  then  go  back  with  him;  and 
I  know  that  she  would  be  willing;  but  of  course  it  must  be 
different  the  other  way."  The  Court — ''You  made  me  an 
answer,  a  while  ago,  that  when  you  should  be  fourteen  years 
of  age  you  would  be  entitled  to  name  your  own  guardian. 

How  do  you  know  that?"     Ans. — "Mamma  told  jne 

She  said  to  me  she  would  be  very  happy  when  I  was  four- 
teen, and  I  asked  why,  and  she  said  if  anything  I  would  be 
able  to  choose  my  own  guardian."  (Rptrs.  Trs.  Testy.,  p. 
98.) 

All  through  her  examination  the  minor  adhered  to  her  de- 
sire to  remain  with  those  with  whom  she  has  been  domiciled 
since  her  birth,  and  stated  that  her  mother  so  desired  in  her 
last  hours:  "She  wanted  me  to  remain  with  auntie  because 
aunt  had  been  so  good  to  her"  (Reptrs.  Trs.,  pp.  67,  68),  etc. 

Finally,  at  the  instance  of  the  court,  the  minor  while  alone 
wrote  freely  her  desire,  in  these  words : 

"San  Francisco,  December  3,  1884. 
"Judge  Coffey: — My  desire  is  to  live  with  my  aunt,  Mrs. 
C.  A.  Taber,  and  hope  you  will  consent  to  it.  I  am  thirteen 
years  and  eight  months.  I  am  now  going  to  the  Denman 
School  and  getting  along  in  my  studies  very  well,  being  now 
number  one  of  my  room.  We  now  live  on  737  Ellis  street, 
between  Larkin  and  Polk.  Hoping  you  w^ll  be  of  the  same 
opinion  as  I  am,  in  regard  to  living  with  my  aunt,  I  remain, 

' '  Yours  respectfully, 

"GERTRUDE  A.  SMITH." 

It  Avill  be  seen  from  the  foregoing  that  the  court  has  done 
everything  in  its  power  to  ascertain  what  is  for  the  best  in- 
terests of  this  child,  feeling  an  extreme  reluctance  to  sepa- 


Guardianship  of  Smith.  181 

rate  that  interest  from  the  father's  right,  and  pajdng  great 
heed  to  the  argument  of  his  counsel.  The  right  of  the  father 
has  been  considered  fairly  and  fully;  and  the  court  very 
much  regrets  that  its  views  of  the  minor's  interests,  and  her 
own  earnest  entreaty,  compel  it  to  deny  his  petition.  As 
was  said  in  the  case  of  Pool  v.  Gott,  supra,  this  is  eminerftly 
a  case  for  amicable  arrangement  between  the  parties.  Some 
agreement  might  have  been  made,  might  still  be  made,  by 
which  the  child  should  spend  part  of  her  time  with  her 
father,  to  allow  opportunities  for  mutual  affections  and  in- 
terests to  grow  up  between  herself  and  her  paternal  rela- 
tions; but  it  is  not  in  the  power  of  the  court  in  this  proceed- 
ing to  decree  any  arrangement,  except  to  permit  the  father 
freely  to  visit  his  child,  at  such  times  and  places  as  may  be 
suitable ;  and  his  counsel  will  propose  such  restrictions  which, 
if  agreed  upon,  will  be  accepted  by  the  court ;  and,  if  not 
agreed  upon,  the  court  will  settle  the  terms  of  the  restric- 
tions, subject  to  which  the  prayer  of  Mrs.  Taber  is  granted. 


The  Father  or  Mother  of  the  Minor  if  found  by  the  court  compe- 
tent to  discharge  the  duties  of  guardianship,  ordinarily  is  entitled 
to  be  appointed  guardian,  in  preference  to  any  other  person:  Cal. 
Code  Civ.  Proc.  1751.  This  right  of  the  parent  may  be  lost  by 
abandoning  the  child,  or  by  such  a  course  of  conduct  as  makes  him 
or  her  unfit  to  have  its  care  and  custody.  The  rigid  rule  of  the  com- 
mon law  which  gave  the  father  the  right  to  the  custody  and  services 
of  his  child,  superior  to  that  of  the  mother  and  all  others,  has  been 
decidedly  relaxed  in  modern  times,  and  it  is  now  universally  con- 
ceded that  the  parental  right  must  yield  and  be  subordinated  to  the 
best  interests  of  the  child,  even  to  the  extent  of  its  being  placed  in 
the  hands  of  strangers.  Indeed,  neither  parent  has  any  right  that 
can  be  made  to  conflict  with  the  welfare  of  the  child:  In  re  Lund- 
berg,  143  Cal.  402,  7  Pac.  156;  In  re  Van  Loan,  142  Cal.  423,  76 
Pac.  37;  Ex  parte  Becknell,  119  Cal.  496,  51  Pac.  692;  Ex  parte 
Miller,  109  Cal.  643,  42  Pac.  428;  In  re  Vance,  92  Cal.  195,  28  Pac. 
229;  In  re  Galleher,  2  Cal.  App.  365,  84  Pac.  352;  Jones  v.  Bowman, 
13  Wyo.  79,  77  Pac.  439,  67  L.  E.  A.  860;  Eusner  v.  McMillan,  37 
Wash.  416,  79  Pac.  988;  Nugent  v.  Powell,  4  Wyo.  173,  62  Am.  St. 
Eep.  17,  33  Pac.  23,  20  L.  E.  A.   199. 

The  Wishes  of  a  Child,  if  he  is  of  a  sufficient  age  to  form  an  in- 
telligent preference,  although  not  conclusive  on  the  court,  will  al- 
ways be  given  due  consideration  in  determining  who  shall  be  named 


182  Coffey's  Probate  Decisions,  Vol.  1. 

guardian:  Stapleton  v.  Poynter,  111  Ky.  264,  98  Am.  St.  Eep.  411, 
62  S.  W.  730.  It  is  not  necessary,  in  order  for  a  child  to  enjoy  this 
privilege,  that  he  has  reached  the  age  of  fourteen:  Willet  v.  Warren, 
34  Wash,  647,  76  Pac.  273. 


Guardianship  of   THEODORA   F.   HANSEN,   Minor. 

[No.  4,243;   decided  January  26,  1886.] 

Guardian — Eligibility  of  Nonresident. — Where  the  mother  of  a 
minor  is  a  nonresident,  she  is  legally  incapable  of  obtaining  letters 
of  guardianship  over  the  child  in  this  state. 

Guardian — Eligibility  of  Married  Woman. — Where  the  mother  of 
a  minor  is  a  married  woman,  she  is  ineligible  to  become  guardian. 

Guardian — Choice  of  Child. — A  child  ten  years  of  age  who  has  been 
educated  carefully  and  is  a  bright  girl  may  be  capable  of  expressing 
"an  intelligent  preference"  for  a  guardian,  which  the  court  will  con- 
sider. 

Guardian — Best  Interests  of  Ward. — In  awarding  the  custody  of  a 
minor,  or  appointing  a  general  guardian,  the  court  is  guided  by  what 
appears  to  be  for  the  child  's  best  interests  as  to  its  temporal,  mental 
and  moral  welfare. 

Guardian. — Where  Application  is  Made  for  Guardianship  of  a 
Minor,  if  there  is  no  person  before  the  court  who  is  legally  entitled 
to  the  guardianship,  it  must  be  shown,  to  justify  a  resistance  of  the 
application,  even  by  the  nonresident  mother,  that  no  guardian  is 
needed  for  the   child,  or  that  the   applicant   is  an  unfit  person. 

Guardian — Stranger  Preferred  to  Mother. — Where  a  mother,  after 
desertion  by  her  husband,  committed  her  child  to  the  care  of  the  pe- 
titioner, agreeing  that  he  should  adopt  it  (which  he  never  legally 
did),  and  afterward,  under  judgment  in  an  action  for  divorce  by 
the  mother,  the  child  was  awarded  to  petitioner;  and  the  petitioner 
kept  the  child  for  nearly  six  years,  until  the  mother  wanted  to  get 
the  child  again,  when  he  applied  for  guardianship  of  her,  the  mother 
opposing  it,  and  the  divorce  decree  being  modified  pending  the 
guardianship  proceedings,  so  as  to  remit  the  question  of  custody  to 
the  guardianship  department;  and  during  all  the  period  aforesaid  pe- 
titioner and  his  wife  treated  and  educated  the  child  as  if  she  were 
their  own;  and  the  mother  is  legally  incapable  and  ineligible  to 
become  guardian,  being  a  nonresident  and  married;  and  the  child  has 
expressed  a  preference  for  petitioner,  and  it  would  not  be  for  the 
child's  best  interests  to  place  her  anywhere  but  with  petitioner, 
guardianship  should  be  granted  to  petitioner;  but  so  restricted  that 
the   mother   may   communicate   with    and   visit   the   child. 


Guardianship  of  Hansen.  183 

Guardianship — Interest  of  State. — In  the  matter  of  the  guardian- 
Bhip  of  minors,  the  state  is  interested  in  having  beneficial  influences 
surround  and  impress  its   future   citizens. 

In  the  matter  of  the  guardianship  of  the  above  minor,  it 
appears  that  letters  of  guardianship  were  granted  to  J.  W. 
Baldwin,  on  May  13,  1885,  after  the  usual  notices  required 
by  the  statute  to  relatives  within  the  state  (the  mother,  it 
would  seem,  being  absent  therefrom).  Immediately  after 
the  granting  of  these  letters,  and  on  May  15,  1885,  affida- 
vits and  a  petition,  on  behalf  of  the  child's  mother  (Fran- 
ces E.  Fairbanks),  were  filed,  for  a  revocation  of  the  letters 
to  Baldwin;  and  on  May  18,  1885,  an  order  to  show  cause 
was  made,  and  a  citation  issued  against  said  Baldwin.  There- 
after, it  would  seem,  from  the  record  in  the  case,  that  pro- 
ceedings were  taken  before  Judge  Coifey,  as  if  there  had 
never  been  a  grant  of  guardianship  to  Baldwin ;  this  course 
no  doubt  having  been  deemed  necessary  or  advisable,  in  view 
of  the  claim  of  the  child's  mother,  appearing  of  record,  that 
the  divorce  court,  referred  to  in  Judge  Coffey's  opinion,  had 
never  surrendered  or  lost  jurisdiction  over  the  minor;  and 
in  furtherance  of  the  modification  (subsequently  had)  of  the 
decree  of  the  divorce  court,  remitting  the  question  of  the 
child's  custody  to  the  determination  of  the  probate  depart- 
ment of  the  court.  Two  written  requests  of  the  child,  both 
in  favor  of  Baldwin,  appear  of  record,  filed  on  June  6th  and 
December  24,  1885.  Each  of  them  is  entirely  in  the  child's 
handwriting,  addressed  to  the  judge,  giving  the  name  and 
residence  of  the  child,  and  expressing  its  wish  to  stay  with 
''Papa  Baldwin." 

M.  A.  Dorn  and  P.  B.  Nagle,  for  applicant  Baldwin. 

Thos.  P.  Ryan,  for  the  mother,  Mrs.  Fairbanks. 

COFFEY,  J.  This  application  has  been  a  long  time  be- 
fore the  court,  but  the  delay  in  deciding  it  is  not  due  to  the 
court,  except  so  far  as  the  disposition  to  come  to  a  cor- 
rect conclusion  has  induced  deliberation;  and  in  that  regard 
the  court  has  not  gone  beyond  the  constitutional  limitations. 

The  facts  are,  as  adduced  in  evidence :  The  minor  was  born 
July  5,   1875,  the   parents  being  Theodore  E.   Hansen  and 


184  Coffey's  Probate  Decisions,  Vol.  1. 

Frances  E.  Hansen,  who  had  contracted  marital  relations  in 
September,  1874;  the  parents  did  not  live  happily  together, 
and  after  a  while  parted,  the  husband  deserting  the  wife,  as 
she  alleges,  leaving  with  her  two  children,  one  of  them,  the 
minor,  Theodora,  aged  at  that  time  four  years,  September, 
1879;  the  mother  being  in  poor  circumstances,  under  the  ad- 
vice of  a  friend,  gave  the  custody  of  the  child  to  J.  W.  Bald- 
win, the  applicant  here,  and  agreed  that  he  should  adopt  the 
child ;  but  he  did  not  do  so  according  to  law,  and  subsequently 
the  mother  claims  that  she  repented  her  agreement,  and  de- 
sired to  regain  the  custody  of  the  child;  but  upon  this  point 
there  is  a  conflict  of  evidence,  as  Baldwin  denies  that  the 
mother  ever  expressed  to  him  a  change  of  mind,  but,  on  the 
contrary,  he  swears  she  always  caused  him  to  believe,  until 
the  year  1885,  that  he  could  have  the  sole  custody  of  said 
minor,  and  that  the  child  has  been  reared  and  educated  by 
himself  and  wife  for  six  years,  and  that  she  has  received 
the  constant  care  and  attention  of  his  wife,  whose  sole  com- 
panion she  has  been  during  such  period;  that  they  have  no 
child  of  their  own,  and  that  they  have  become  greatly  at- 
tached to  said  minor,  who  reciprocates  their  attachment;  and 
that  in  sickness  and  in  health  they  have  treated  the  minor 
as  if  she  were  their  natural  born  child.  The  uncontroverted 
fact  is  that  the  applicant,  Baldwin,  received  the  child  from 
her  mother,  and  has  retained  the  custody  up  to  this  time. 
On  the  11th  of  March,  1885,  the  minor's  mother  commenced 
an  action  for  divorce  in  this  county  against  the  minor's 
father,  Theodore  E.  Hansen,  and  on  the  10th  of  April,  1885, 
the  superior  court,  department  one,  Wilson,  Judge,  rendered 
a  decree  of  divorce,  and  awarded  the  custody  of  said  child 
to  said  Baldwin  until  the  further  order  of  the  court ;  subse- 
quently the  lady  was  married  to  Mr.  Fairbanks,  a  respect- 
able gentleman,  residing  and  doing  business  in  the  state  of 
Nevada,  where  she  has  since  continued  to  reside.  The  decree 
of  the  court  in  the  divorce  suit  was  modified  pending  these 
proceedings,  with  respect  to  the  custody  of  the  child,  by  re- 
mitting to  this  department  that  question. 

There  was  but  one  application  for  guardianship — that  pre- 
ferred by  Baldwin ;  the  mother  of  the  minor  is  a  nonresident. 


Guardianship  of  Hansen.  185 

and  incapable  under  the  code  by  reason  of  such  nonresidence ; 
and,  moreover,  ineligible,  because  she  is  a  married  woman : 
Code  Civ.  Proc,  sec.  1751.  She  is  here,  however,  simply  re- 
sisting the  application  of  Baldwin,  in  whose  custody  the  child 
is  in  the  first  place  by  her  own  act,  and  afterward  by  the 
order  of  the  court  in  the  action  for  divorce. 

The  child  is  now  ten  years  of  age,  and  has  been  examined 
by  the  court  in  the  manner  customary  in  such  cases,  and  has 
orally  and  in  writing  twice  expressed  her  preference  as  to 
custodians — June  6,  1885,  and  on  December  24,  1885 — each 
time  declaring  her  desire  to  remain  with  Mr.  Baldwin ;  these 
written  requests  or  expressions  of  preference  are  filed  among 
the  papers  in  the  case,  as  is  usual  in  such  matters. 

For  six  years  the  child  has  lived  in  that  family,  and  has 
been  treated  tenderly  and  educated  carefully.  She  is  a 
bright  girl,  and  capable  of  expressing  "an  intelligent  pref- 
erence," in  the  sense  of  the  statute  (Civ.  Code,  sec.  246), 
which  preference  the  court  may  consider. 

In  awarding  the  custody  of  a  minor,  or  in  appointing  a 
general  guardian,  the  court  is  to  be  guided,  as  a  paramount 
consideration,  by  what  appears  to  be  for  the  best  interests 
of  the  child,  in  respect  to  its  temporal  and  its  mental  and 
moral  welfare.  The  mother  is  a  nonresident  and  a  married 
woman,  and  is  beyond  the  jurisdiction  of  this  court  in  this 
proceeding,  and  if  there  were  no  other  consideration,  she 
could  not  be  considered  as  an  applicant;  and,  in  order  to 
justify  her  resistance  to  this  application,  it  should  be  shown 
that  no  guardian  is  needed,  or  that  the  applicant,  Baldwin, 
is  an  unfit  person  to  be  appointed  guardian. 

It  appears  from  the  evidence  that  the  Baldwins,  to  whose 
custody  this  child  was  primarily  committed  by  the  mother, 
and  subsequently  confirmed  by  the  divorce  court,  have  a 
comfortable  home;  they  have  had  Theodora  for  six  years 
continuously;  she  is  attached  to  them  and  they  to  her;  she 
knows  no  home  but  theirs;  their  care  and  management  of 
her  have  been  unexceptionable;  if  she  were  to  leave  them 
she  could  gain  no  better  home  temporarily,  mentally  or  mor- 
ally, while  great  risks  would  be  run  by  a  change;  she  would 
have  to  part  from  her  present  friends  and  find  new  associa- 
tions; to  be  summarily  wrested  from  the  only  home  life  she 


186  Coffey's  Probate  Decisions,  Vol.  1. 

has  ever  known,  and  separated  from  influences  that  have 
been  beneficial;  and  the  state  is  interested  in  having  such  in- 
fluences surround  and  impress  its  future  citizens. 

This  is  substantially  the  sentiment  and  language  employed 
by  my  predecessor  on  this  bench  in  the  Guardianship  of 
Irma  Linden  (Myrick's  Reports,  p.  221),  which  only  follows 
the  current  of  decisions  in  similar  cases,  such  as  Cozine  v. 
Horn,  1  Bradf.  143.  Foster  v.  Mott,  3  Bradf.  409,  Holley 
v.  Chamberlain,  1  Redf.  333,  Burmester  v.  Orth,  5  Redf. 
259,  and  Macready  v.  Wilcox,  33  Conn.  321.  These  and 
numerous  other  cases  that  might  be  cited  to  the  same  pur- 
port leave  no  room  for  doubt  as  to  the  law. 

However  hard  the  conclusion  may  seem  to  the  mother,  the 
Court  must  find  from  the  evidence  that  it  is  necessary  a 
guardian  should  be  appointed,  and  that  the  gentleman  to 
whose  care  she  six  years  ago  consigned  the  child,  and  in 
whose  custody  the  judge  who  decided  the  divorce  suit  or- 
dered the  child  should  remain,  and  with  whom  such  child 
desires  to  remain,  should  be  appointed  the  guardian;  and  it 
is  so  ordered. 

Let  a  decree  be  prepared  according  to  the  conclusion  here- 
in reached,  with  the  restriction  that  the  mother  shall  from 
time  to  time  communicate  with  and  be  permitted  to  visit 
the  child,  and  the  bond  of  guardian  is  fixed  at  one  thousand 
dollars.  . 

For  Authorities  bearing  upon  the  decision  in  the  principal  case, 
see  Guardianship  of  Smith,  ante,  p.  169,  and  note. 


Estate  of  PETER  DONAHUE,  Deceased. 

[No.   4,796;    decided  May   10,   1887.] 

Partial  Distribution — Petition  by  Widow. — Where  one  petitions  for 
partial  distribution  of  an  estate,  and  alleges  that  she  is  the  widow 
of  deceased,  and  is  desirous  of  having  her  share  of  the  community 
property  therein  described  assigned  and  distributed  to  her,  it  suffi- 
ciently appears  that  the  petitioner  is  an  heir.  As  widow  she  is 
included  in  the  statutory  term  "heir." 

Partial  Distribution — SuflRciency  of  Petition  as  Showing  Title  and 
Seisin. — Where  the  widow  of  a  decedent  petitions  to  have  her  share 
of  the  community  property  assigned   to   her,  by  way  of  partial   dis- 


Estate  of  Donahue.  187 

tribution,  alleging  that  certain  property  described  in  the  inventory 
of  the  estate,  and  then  particularly  describing  it,  was  conveyed  to 
decedent  by  a  particular  person  named,  and  on  a  particular  date 
mentioned,  such  averments  of  title  in  the  decedent  and  seisin  at  the 
time  of  his  death    are  sufficient. 

Partial  Distribution — Sufficiency  of  Petition  as  Showing  Community 
Property. — An  allegation  in  the  petition  of  a  widow  to  have  her 
share  of  the  community  property  assigned  to  her  by  way  of  partial 
distribution,  that  the  property  (describing  it)  "was  acquired  by 
the  said  deceased  after  his  marriage  with  your  petitioner,  to  wit" 
on  a  day  named,  "and  was  not  acquired  by  gift,  bequest,  devise  or 
descent;  but,  on  the  contrary,  by  purchase  for  a  valuable  considera- 
tion, and  as  she  is  advised  and  insists  was,  and  is  the  community 
property,"  is  sufficient,  ae  a  statement  of  the  character  of  the  prop- 
erty. It  is  sufficient  treating  the  petition  as  a  pleading;  but  es- 
pecially so  as  an  application  for  partial  distribution. 

Partial  Distribution — Informality  of  Petition. — A  petition  for  par- 
tial distribution  of  a  decedent 's  estate  should  not  be  treated  as 
severely  as  a  common-law  pleading.  All  that  it  need  show  is  that 
the  person  applying  has  the  status  of  an  applicant  as  described  in 
the  statute,  and  that  the  administration  of  the  estate  is  in  a  sufficient 
state   of  forwardness  to   authorize   a   distribution. 

Partial  Distribution. — Whenever  the  Administration  of  an  Estate 
has  Advanced  so  far  as  to  be  in  a  sufficient  state  of  forwardness  to  au- 
thorize distribution,  it  is  the  duty  of  the  court,  upon  petition  of  any 
party  interested,  to  proceed  to  a  partial  distribution,  and  for  that 
purpose  to   make  the   necessary   investigation   of   facts. 

Partial  Distribution — Petition  by  Executrix. — A  party  is  not  in- 
capacitated to  apply  for  partial  distribution  of  a  decedent's  estate 
because  she  is  an  executrix  of  his  will. 

Partial  Distribution. — Assuming  that  the  Question  of  Giving  a  Bond 
upon  partial  distribution  can  be  considered  upon  demurrer  to  an  ap- 
plication for  partial  distribution,  and  the  objection  taken  that  the 
party  to  give  the  bond  is  both  distributee  and  executrix — obligor 
and  obligee;  the  answer  is  that  the  law  is  so  written. 

Partial  Distribution — Petition  by  Administrator. — The  Practice  of 
the  Court  since  its  institution,  in  recognizing  the  right  of  an  heir  or 
devisee,  although  he  is  also  the  representative  of  the  estate,  to  apply 
for   and    have   partial    distribution,   referred   to    and   cases   cited. 

Partial  Distribution — Petition. — Various  Grounds  of  Special  De- 
murrers for  ambiguity,  presented  to  a  petition  for  partial  distribution 
of  a  decedent's  estate,  are  overruled  in  this  case. 

Decedent's  Widow  Applied  for  Partial  Distribution  of  the  Estate, 
alleging  that  "a  portion"  of  it  was  separate  property,  and  "the 
other  portion"  community  property,  particularly  describing  and 
claiming    the    portion    alleged    to    be    community.      Demurrer,    on    the 


188  Coffey's  Probate  Decisions,  Vol.  1. 

ground  that  it  appeared  from  the  petition  to  be  necessary  to  ascer- 
tain and  determine  the  title  to  the  property  asked  to  be  distributed, 
and  that  title  could  only  be  determined  upon  final  distributipn,  or 
under  section  1664,  Code  of  Civil  Procedure,  overruled.  (See  Es- 
tate of  Jessup,  81  Cal.  408,  21  Pac.  976,  22  Pac.  742,  1028,  6  L.  E. 
A.  594,  affirming  Coffey,  J.) 

The  opinion  of  the  court  in  this  matter  was  rendered  up- 
on two  demurrers  (considered  together)  to  an  amended  pe- 
tition for  a  partial  distribution  of  the  estate.  The  petition 
was  presented  by  the  widow  of  the  decedent,  asking  to  have 
her  community  rights  in  the  property  assigned  and  distrib- 
uted to  her  by  way  of  partial  distribution.  The  following 
quotations  are  made  from  the  petition  in  order  to  give  the 
exact  language  of  certain  important  allegations  referred  to 
in  the  opinion  of  the  court:  1.  As  to  the  motive  and  ob- 
ject of  the  petition — "That  she  (petitioner)  is  desirous  of 
having  her  share  or  portion  of  the  community  property  of 
herself  and  the  said  Peter  Donahue  assigned  and  distributed 
to  her  (page  2,  of  petition)";  and  your  petitioner  declines 
to  release,  relinquish  or  assign  any  claim  or  interest  in  com- 
mon or  community  property;  but,  on  the  contrary,  claims 
her  share  thereof.  Wherefore,  your  petitioner  prays  that 
the  said  J.  Mervyn  Donahue  and  Mary  E.  Von  Schroeder 
(coexecutors)  may  be  required  to  answer  this  petition,  and 
that  partial  distribution  of  said  estate  may  be  made  oy  or- 
der of  this  court,  and  that  one-half  of  all  of  the  property 
hereinabove  described  and  claimed  as  community  property, 
exclusive  of  such  household  furniture  as  may  be  set  apart 
to  her,  be  distributed  and  assigned  to  her  as  her  share  there- 
of, and  that  she  may  have  such  further  and  other  relief  in 
the  premises  as  may  be  just  and  proper  (Id.,  p.  35).  2.  As 
to  the  relationship  and  heirship  of  the  petitioner — her  status 
— "The  amended  petition  of  Annie  Donahue,  widow  of  Peter 
Donahue,  deceased,  respectfully  shows  (page  1  of  petition)  ; 
That  your  petitioner  was  married  to  the  said  Peter  Dona- 
hue in  the  state  of  California,  of  which  they  were  both  resi- 
dents, on  the  sixth  day  of  August,  1864;  and  since  which 
time  they  resided  in  said  state  continuously  until  the  death 
of  said  Peter  Donahue  (Id.,  p.  2)";  signed,  "Annie  Dona- 
hue"  (also  by  her  attorneys)    (Id.,  p.  35)  ;  and  verified  hy 


Estate  of  Donahue.  189 

her  (Id.,  p.  36).  3.  As  to  the  character  and  quality  of  the 
property  the  title  and  seisin  of  the  decedent  and  his  estate, 
etc. — "That  the  estate  of  the  said  deceased  has  been  ap- 
praised in  the  aggregate  at  the  sum  of  3,778,312  dollars, 
whereof  a  portion  is  separate  property  of  the  said  deceased, 
and  (the)  other  portion  is  community  property  of  the  de- 
ceased and  your  petitioner  (page  1  of  petition),  as  to  how 
much  and  what  particular  parts  of  the  said  estate  are  com- 
munity property,  she  alleges  that  the  parcel  of  land  in  the 
city  and  county  of  San  Francisco,  described  in  the  inven- 
tory of  the  estate  of  the  said  deceased  as  follows,  viz. :  1, 
(describing  it)  ....  conveyed  by  Edward  Martin  to  said 
Peter  Donahue  January  25,  1879 ;  recorded  in  Liber  X  of 
Deeds,  page  10,  was  acquired  by  the  said  Peter  Donahue, 
deceased,  after  his  said  marriage  with  your  petitioner,  to 
wit :  on  or  about  the  twenty-fifth  day  of  January,  1879,  and 
was  not  acquired  by  gift,  bequest,  devise  or  decedent;  but, 
on  the  contrary,  by  purchase  for  a  valuable  consideration, 
and,  as  she  is  advised  and  insists,  was  and.  is  community 
property  (pages  2  and  3  of  petition)";  then  follow  the  de- 
scriptions of  twenty-nine  other  parcels  of  realty,  with  aver- 
ments in  the  same  language  as  above,  as  to  the  inclusion  of 
each  in  the  inventory  of  the  estate,  the  date  and  record  of 
the  conveyance  of  each  to  the  decedent,  and  the  character 
and  nature  of  the  acquisition  (Id.,  pp.  3-26)  ;  then  follows 
a  particular  and  detailed  description  of  "notes,  accounts, 
stocks,  bonds,  choses  in  action,  and  other  personal  property 
embraced  in  the  inventory  of  said  estate  and  therein  de- 
scribed (Id.,  pp.  26-33),"  with  the  allegation  that  "all 
thereof  were  acquired  by  the  said  Peter  Donahue  in  his  life- 
time, and  after  his  marriage  with  your  petitioner,  and  was 
not,  nor  was  any,  or  either,  or  any  part  thereof,  acquired 
by  gift,  bequest,  devise  or  descent;  but,  on  the  contrary,  by 
purchase  for  a  valuable  consideration,  and,  as  she  is  advised 
and  insists,  the  same,  and  each  and  every  thereof,  were  and 
are  community  property  (Id.,  pp.  33,  34)";  then  follow 
similar  averments  respecting  an  additional  chose  in  action, 
separately  specified  on  page  34  of  the  petition.  Following 
these  allegations  and  specifications  of  the  property  of  de- 
ceased is  the  averment:  "Your  petitioner  further  shows  that 


190  Coffey's  Probate  Decisions,  Vol.  1. 

she  has  reason  to  believe,  and  does  believe,  that  there  are 
other  assets  and  property  of  the  said  Peter  Donahue,  the  par- 
ticulars of  which  are  at  present  unknown  to  her,  some  or 
all  of  which  are  community  property;  and  she  prays  leave 
whenever  the  same,  or  any  part  thereof,  may  be  discovered, 
to  have  the  same,  so  far  as  may  be  necessary,  included  here- 
in by  proper  amendment   (page  34  of  petition)." 

There  were  ten  (10)  grounds  of  demurrer  taken,  seven  of 
the  grounds  being  by  way  of  special  demurrer  for  ambig- 
uity. All  of  these  grounds  are  fully  and  separately  set  out, 
and  enumerated  in  their  order,  in  the  opinion  of  the  court. 
The  opinion  also  analyzes  the  various  grounds  of  the  de- 
murrers and  makes  them  more  clear  by  stating  their 
"objective  points."  After  an  oral  argument  upon  the  de- 
murrers, a  printed  brief  was  prepared  and  submitted  on  be- 
half of  the  demurrants,  and  a  reply  to  this  was  presented 
(March  11,  1887)  on  behalf  of  Mrs.  Donahue.  In  this 
printed  brief  but  two  points  were  urged  upon  the  court, 
viz.:  (1)  The  averment  that  the  property  was  purchased 
after  marriage  for  a  valuable  consideration  is  ambiguous  and 
uncertain,  in  not  showing  and  virtually  tracing  the  source 
of  the  consideration ;  and  so  vulnerable  to  special  demurrer. 

"Such  valuable  consideration  may  or  may  not  constitute 
the  property,  separate  property.  If  the  funds  constituting 
the  valuable  consideration  were  funds  of  the  community, 
then  of  course  the  property  would  be  community  property. 
While  if.  on  the  contrary,  such  funds  constituted  the  funds 
of  the  separate  estate  of  either  of  the  spouses,  then  the  prop- 
erty would  not  be  common  property,  but  would  give  the 
separate  estate  of  the  spouse  out  of  whose  separate  funds 
such  consideration  proceeded." 

(2)  That  the  statute  which  gives  an  heir  a  right  to  have 
partial  distribution  of  the  succession  is  conditioned  upon 
giving  a  bond  for  the  payment  of  his  proportion  of  the 
debts;  that  this  bond  must  run  to  the  executor  or  adminis- 
trator for  the  creditor 's  benefit ;  that  where  an  heir  is  al- 
so the  representative  of  the  estate,  he  cannot  give  the  bond 
required  by  the  statute  (which  must  be  presumed  to  be  the 
ordinary  legal  bond),  for  he  would  be  both  obligor  and  ob- 
ligee, and  thus  rob  the  bond  of  its  usual — and,  it  must  be 


Estate  of  Donahue.  191 

held,  indispensable — attributes;  therefore,  the  statute  must 
be  construed  as  excepting  from  its  provisions  an  heir  or  lega- 
tee who  is  at  the  same  time  the  legal  representative  of  the 
estate — ^such  heir  is  under  a  disability,  has  a  want  of  ca- 
pacity, to  apply  for  a  partial  distribution. 

Inasmuch  as  all  the  ten  grounds  of  demurrer  are  enumer- 
ated in  the  opinion  of  the  court,  and  apparently  considered 
advisable  to  be  passed  upon,  it  may  be  of  value  to  notice  the 
positions  taken  on  the  oral  argument  by  the  demurrants, 
which  were  seemingly  abandoned  or  tacitly  consented  to  be 
put  aside,  by  their  printed  brief  aforesaid.  As  the  peti- 
tioner's counsel  in  their  "reply"  to  this  printed  brief 
claimed  every  advantage  that  could  be  considered  gained 
from  this  apparent  waiver  of  original  positions,  it  has  been 
deemed  best  to  state  these  positions  in  the  language  of  such 
reply  brief;  especially  as  there  is  also  given,  in  a  succinct 
form,  the  answer  of  petitioner  to  each  of  these  positions,  as 
advanced  upon  the  oral  argument.  We  quote  from  pages  2, 
3  and  4  of  "Reply  to  Points  on  Demurrer"  (presented  by 
Mrs.  Donahue's  counsel,  Messrs.  Galpin,  Scripture  and 
Loughborough),  viz.: 

"The  paper  (demurrants'  brief)  is  as  remarkable  for  what 
it  omits,  as  for  its  contents.  It  practically  abandons  num- 
erous points  urged  with  great  apparent  earnestness  on  the 
oral  arguments.  Respondents  had  claimed :  1.  That  their 
general  demurrer,  '  that  the  petition  stated  no  cause  of 
action,'  was  good,  upon  the  authority  of  Dye  v.  Dye;  to 
which  we  replied,  that  Dye  v.  Dye  had  been  overruled  by 
Gimmy  v.  Doane,  22  Cal.  637-639;  and  that  the  petition 
stated  a  cause  of  action  within  the  latter  case.  2.  They 
argued,  also,  'that  the  petition  did  not  allege  that  Peter 
Donahue  was  seised  at  his  death  of  the  various  pieces  of 
property  described  in  the  petition.'  We  replied,  that  the 
petition  did  allege  'the  date  of  each  conveyance  to  Peter 
Donahue  as  being  subsequent  to  his  marriage,  and  that  said 
property  w^as  now  in  the  inventory  as  part  of  his  estate.' 
3.  They  argued  that  the  petition  did  not  allege  'that  the 
grantor  of  Peter  Donahue  was  ever  seised  in  fee  of  the 
premises  described.'  We  replied,  that  'we  were  not  declar- 
ing in   ejectment,   but   petitioning  for   distribution   of  com- 


192  Coffey's  Probate  Decisions,  Vol.  1. 

munity  property;  and  that  the  widow  was  entitled  to  her 
share  of  all  property  in  possession,  whether  held  by  titles 
good,  bad,  indifferent  or  worthless.'  4.  They  argued  that 
'the  petition  should  state  the  probative  facts  required  by 
the  statute,  as  was  decided  in  Dye  v.  Dye,  and  also  it  should 
not  state  probative  but  ultimate  facts,  as  was  decided  in 
authorities  read  from  eastern  states.'  We  replied  that  the 
argument  defeated  itself,  for  both  propositions  contended 
for  could  not  be  true;  and,  further,  that  we  did  plead  the 
probative  facts  of  marriage,  subsequent  acquisition  of  prop- 
erty, etc.,  and  that  we  also  did  plead  the  ultimate  fact,  that 
the  property  specified  was  community  property,  that  is, 
property  of  the  community;  and  that  ownership,  like  seisin, 
was  the  ultimate  fact.  5.  They  argued  that  although  'we 
had  alleged  that  the  property  was  purchased  for  a  valuable 
consideration  after  marriage,  we  should  also  have  alleged 
that  said  property  was  not  purchased  with  the  separate 
estate  of  Peter  Donahue.'  We  replied  that,  as  a  general 
rule,  the  pleader  was  not  required  to  plead  negative  matter, 
because  he  was  not  required  to  prove  it;  and  that  this  case 
came  within  no  exception  to  that  rule.  6.  They  argued 
on  the  next  day,  shifting  their  point  from  negative  to 
affirmative,  that  we  'must  prove  and  allege  that  the  prop- 
erty was  purchased  with  community  funds.'  We  replied, 
that  we  were  compelled  to  plead  such  affirmative  matter 
only  as  we  were  required  to  prove;  that  because  of  the  legal 
presumption  that  the  purchase  was  made  with  community 
funds,  we  were  not  compelled  to  plead  as  claimed;  on  the 
contrary,  that  respondents  should  allege  and  prove  that  said 
property  was  separate  estate,  in  order  to  raise  and  try  that 

issue The  points  now  presented  in  support  of  the 

demurrer  are,  by  the  printed  argument,  reduced  to  two.  The 
others,  discussed  at  such  length  orally,  we  may  deem  aban- 
doned. ' ' 

Finally,  attention  is  directed  to  the  fact  that  section  1664. 
Code  of  Civil  Procedure,  referred  to  in  the  final  (tenth) 
ground  of  demurrer,  is  the  new  section  added  to  the  probate 
law,  approved  March  18,  1885  (Stats.  1885,  pp.  208-210).  The 
section  provides  for  a  proceeding,  in  the  nature  of  a  civil 


Estate  of  Donahue.  193 

action,  to  determine  heirship  and  the  status  of  all  claimants 
to  any  estate  of  a  decedent  in  course  of  administration,  be- 
ing intended  to  meet  such  cases  as  the  Blythe  estate,  for 
which  litigation  it  was  avowedly  devised.  In  the  language 
of  the  section,  "at  any  time  after  the  expiration  of  one 
year  from  the  issuing  of  letters  testamentary  or  of  adminis- 
tration upon  a  decedent's  estate,  any  person  claiming  to  be 
heir,  or  to  be  entitled  to  distribution  of  any  part  of  the 
estate,  may  'file  a  petition  in  the  matter  of  such  estate, 
praying  the  court  to  ascertain  and  declare  the  rights  of  all 
persons  to  said  estate  and  of  all  interests  therein,  and  to 
whom  distribution  thereof  should  be  made '  " ;  whereupon, 
the  elaborate  proceedings  mentioned  in  the  section  for  bring- 
ing in  all  claimants,  and  determining  the  respective  inter- 
ests of  each,  shall  be  taken. 

A.  H.  Loughborough,  P.  G.  Galpin,  John  T.  Doyle,  H.  D. 
Scripture,  for  petitioner,  Mrs.  Donahue,  widow  and  execu- 
trix. 

R.  H.  Lloyd,  for  J.  Merv,yn  Donahue,  executor. 

0.  P.  Evans,  for  Mrs.  Von  Schroeder,  executrix. 

T.  I.  Bergin,  of  counsel   (against  the  petition). 

COFFEY,  J.  Annie  Donahue,  widow  of  Peter  Donahue, 
deceased,  on  the  fifth  day  of  February,  1887,  filed  her 
amended  petition  in  this  court,  praying  for  a  partial  dis- 
tribution to  her  of  one-half  of  all  of  certain  property  de- 
scribed in  said  petition  claimed  by  her  to  be  community 
property.  To  this  petition,  on  the  eleventh  day  of  Febru- 
ary, were  interposed  two  separate  demurrers  on  behalf 
severally  of  J.  Mervyn  Donahue,  and  Mrs.  Mary  Ellen  Von 
Schroeder,  devisees  named  in  the  last  will  of  said  Peter 
Donahue,  deceased. 

GROUNDS    OF    THE    DEMURRERS. 

The  points  of  both  demurrers  are  the  same:  1.  The  in- 
sufficiency of  the  statement  of  facts.  2.  The  lack  of  legal 
capacity  in  the  petitioner.  3.  The  petition  is  ambiguous, 
uncertain  and  unintelligible  in  this :  That  it  is  uncertain 
therefrom  whether  or  not  said  Peter  Donahue  left  any  com- 

Prob.  Dec,  Vol.  I — 13 


194  Coffey's  Probate  Decisions,  Vol.  1. 

miinity  or  other  property,  and  there  is  no  direct  averment 
in  the  petition  that  he  left  common  or  any  property ;  and 
the  fact,  if  such  be  the  fact,  that  he  did  leave  common  prop- 
erty, appears  from  said  petition  only  by  recital  and  infer- 
ence, and  not  by  any  direct  or  positive  averment  on  that 
behalf.  4.  Also,  that  the  petition  does  not  distinctly  allege 
that  there  was  any  community  property;  but  alleges  merely 
conveyance  of  certain  parcels  of  land  to  the  said  Peter  Don- 
ahue, at  the  dates  in  the  petition  specified,  with  the  aver- 
ment that  the  same  was  acquired  by  said  Peter  Donahue, 
deceased,  after  the  said  marriage  with  petitioner,  and  was 
not  acquired  by  gift,  bequest,  devise  or  descent;  but,  on  the 
contrary  by  purchase  for  a  valuable  consideration,  and 
without  stating  or  alleging  whether  or  not  the  considera- 
tion for  each  and  every  of  the  respective  purchases  in  said 
petition  mentioned  was  or  was  not  funds  of  the  community; 
or  that  the  persons,  or  any  of  them,  so  conveying,  had  any 
title  to  be  conveyed,  or  that  by  force  of  such  conveyance 
said  deceased  became  the  owner  of  the  property  so  con- 
veyed; also,  that  it  is  uncertain  and  not  alleged  that  the 
consideration  for  each  of  said  purchases  in  said  petition 
mentioned  was  not  part  of  the  separate  property  and 
separate  funds  of  said  Peter  Donahue,  and  not  any  portion 
of  the  community  property  or  funds  of  the  community. 
5.  Also,  that  the  petition  does  not  allege  that  the  lands 
in  said  petition  described,  or  any  part  of  the  same,  were 
or  was  the  property  or  estate  of  said  Peter  Donahue,  de- 
ceased, at  the  time  of  his  death ;  or  that  the  same,  or  part 
of  the  same,  is  now  any  part  or  portion  of  the  property  or 
estate  of  said  deceased,  or  that  said  Peter  Donahue  con- 
tinued to  own  such  several  parcels  of  land  from  the  time  of 
the  alleged  purchase  of  the  same,  as  in  said  petition  men- 
tioned, up  to  the  time  of  his  death,  or  that  such  lands  are 
of  the  character  as  to  entitle  the  petitioner  to  partial  dis- 
tribution of  the  same,  or  part  of  the  same;  and  the  mere 
fact  that  said  lands,  or  any  part  of  said  lands,  may  be  found 
in  the  inventory  or  described  in  the  inventory  of  the  estate 
of  said  Peter  Donahue,  deceased,  does  not  prove  title  in  said 
Peter  Donahue,  deceased,  at  the  time  of  his  death,  or  upon 
petition  for  distribution  thereof,  at  the  time  of  said  appli- 


Estate  op  Donahue,  195 

cation.  6.  Also,  that  it  is  uncertain  in  this :  that  the  aver- 
ment therein  contained  in  respect  to  the  several  parcels  of 
property  therein  mentioned  and  described — that  the  same 
were  severally  acquired  at  the  dates  therein  alleged,  and 
the  same  were  acquired  subsequent  to  the  marriage  therein 
alleged,  and  that  the  same  were  not  acquired  by  gift,  be- 
quest, devise  or  descent ;  but,  on  the  contrary,  by  purchase 
for  a  valuable  consideration,  and,  as  the  petitioner  is  ad- 
vised and  insists,  was  and  is  community  property — is  not 
an  averment  that  the  same  or  any  part  of  the  same  is  com- 
munity property,  and  no  allegation  that  the  petitioner  is 
informed  and  verily  believes  that  the  same  or  any  part  of 
the  same  is  community  property;  that,  while  said  petitioner 
may  be  advised  and  may  insist  that  the  same  is  community 
property,  such  advice  and  insistence  constitute  no  averment 
of  any  issue  of  material  fact,  and  the  same  is  not  the  equiva- 
lent of  the  apt  averment  that  said  petition  should  in  this 
behalf  contain.  7.  And  that  the  petition  is  uncertain  in 
this :  that  in  and  from  said  petition  it  is  uncertain  whether 
the  same  be  merely  designed  to  definitely  ascertain  what  is 
or  what  is  not  common  property  of  said  estate,  or  whether 
the  same  is  designed  for  partial  distribution  of  the  prop- 
erty of  the  community  heretofore  existing  between  said 
Annie  Donahue  and  said  petitioner,  or  for  partial  distri- 
bution of  said  estate.  8.  And  that  the  same  does  not  defi- 
nitely describe  the  particular  property  whereof  partial  dis- 
tribution is  therein  and  thereby  asked.  9.  And  that  it  is 
not  certain  therefrom  whether  the  proceedings  therein  and 
thereby  contemplated  are  the  proceedings  provided  for  in 
and  by  sections  1658  to  1662,  inclusive,  of  the  Code  of  Civil 
Procedure,  or  of  the  proceedings  authorized  and  provided 
for  in  and  by  section  1664  of  said  Code  of  Civil  Procedure. 
10.  And,  as  a  final  ground  of  demurrer,  it  is  claimed  that 
it  appears,  from  the  face  of  said  petition,  that  it  is  necessary 
to  ascertain  and  determine  the  title  to  the  particular  prop- 
erty, whereof  said  petitioner  prays  partial  distribution,  and 
such  title  can  only  be  determined  either  upon  final  distrib- 
ution of  said  estate,  or  under  the  provisions  of  section  1664 
of  said  Code  of  Civil  Procedure,  and  not  under  said  provi- 


196  Coffey's  Probate  Decisions,  Vol.  1. 

sions   of  said   code   relating   to   partial   distribution   of   the 
estate  of  said  deceased. 

THE   ALLEGATIONS   OF   THE   PETITION. 

The   petition    itself   sets    forth    that    Peter   Donahue    died 
November  26,  1885,  leaving  a  last  will  and  testament,  which 
has  been  admitted  to  probate  in  this  court,  whereby,  among 
other  things,  he  nominated  the  petitioner,  Annie  Donahue, 
and  James  Mervyn  Donahue,  his  son,  and  Mary  Ellen  Von 
Schroeder,  executors  thereof,  all  of  whom  have  qualified  and 
are  acting  as  such;  that  the  estate  of  said  deceased  has  been 
appraised  in  the  aggregate  at  the  sum  of  $3,778,312,  where- 
of a  portion  is  separate  property  of  the  said  deceased,  and 
the   other   portion   is    community   property   of   the   deceased 
and  the  petitioner ;   that  the  executors  have   caused  notice 
to  be  published  as  required  by  sections  1490,  1491,  Code  of 
Civil  Procedure,  and  that  the  time  limited  for  the  presenta- 
tion of  claims  against  the  said  decedent  has  expired;  that 
all  the  claims  against  the  said  deceased  that  have  been  pre- 
sented, allowed  and  approved  have  been  paid,  and  that  the 
claims  which  are  disputed  are  few  in  number  and  insignifi- 
cant in  amount,  in  view  of  the  magnitude  of  the  estate ;  that 
more   than   ten   months    have    elapsed   since    said   will    was 
proved  and  letters  testamentary  issued;  that  the  petitioner 
was   married   to   the   said    Peter   Donahue   in   the   state    of 
California,  of  which  they  were  both  residents,  on  the   6th 
of  August,  1864,  and  since  which  time  they  resided  in  said 
state  continuously  until  the  death  of  said  Peter  Donahue; 
that  she  is  desirous  of  having  her  share  or  portion  of  the 
community  property  of  herself  and  the  said  Peter  Donahue 
assigned  and  distributed  to  her;  and  as  to  how  much  and 
what  particular  parts  of  the  said  estate  are  community  prop- 
erty,  she  alleges  that  certain   pieces  of  property  described 
in  her  petition  were  acquired  by  said  Peter  Donahue  after 
his  said  marriage  with  the  petitioner,  and  were  not  acquired 
by  gift,  bequest,  devise  or  descent ;  but,  on  the  contrary,  by 
purchase  for  a  valuable  consideration,  and  that  such  pieces 
of   property  were  and   are,   as  she  is   advised   and   insists, 
community    property.     The    petitioner    in    her    petition    de- 
clines to  release  or  relinquish  or  assign  any  claim  or  interest 


Estate  of  Donahue.  197 

in  common  or  community   property,   but,   on  the   contrary, 
claims  her  share  thereof. 

OBJECTIVE    POINTS    OF    THE    DEMURRERS. 

As  stated  in  argument  b}^  the  counsel  for  the  demurrants, 
the  objective  points  of-  the  demurrers  are:  (1)  It  does  not 
allege  title  in  the  decedent;  (2)  there  is  no  averment  that 
decedent  continued  to  own  the  property,  or  that  it  consti- 
tutes any  part  of  the  estate;  (3)  that  it  does  not  state  the 
source  of  the  title  of  the  community ;  that  it  should  state  the 
facts;  that  the  averments  of  community  property  are  insuffi- 
cient; (4)  that  the  petitioner  is  incapacitated  to  make  this 
application  by  reason  of  the  fact  that  she  is  petitioner  for 
partial  distribution  and  executrix  at  the  one  time ;  therefore, 
practically,  plaintiff  and  defendant  in  the  same  suit. 

THE    STATUTE    UNDER    V^HICH    PETITION    PRESENTED. 

This  is  a  petition  presented  under  chapter  11,  article  1, 
part  3,  title  11,  the  pertinent  sections  of  which  read  as  fol- 
lows : 

Section  1658.  "At  any  time  after  the  lapse  of  four 
months  from  the  issuing  of  letters  testamentary  or  of  ad- 
ministration, any  heir,  devisee,  or  legatee  may  present  his 
petition  to  the  court  for  the  legac.y  or  share  of  the  estate  to 
which  he  is  entitled,  to  be  given  to  him  upon  his  giving  bonds, 
with  security,  for  the  payment  of  his  proportion  of  the  debts 
of  the  estate." 

Section  1659.  "Notice  of  the  application  must  be  given 
to  the  executor  or  administrator,  personally,  and  to  all  per- 
sons interested  in  the  estate,  in  the  same  manner  that  notice 
is  required  to  be  given  of  the  settlement  of  the  account  of 
an  executor  or  administrator." 

Section  1660.  "  The  executor  or  administrator,  or  any  per- 
son interested  in  the  estate,  may  appear  at  the  time  named 
and  resist  the  application;  or  any  heir,  devisee  or  legatee 
may  make  a  similar  application  for  himself." 

Section  1661.  "If,  at  the  hearing,  it  appear  that  the  es- 
tate is  but  little  indebted,  and  that  the  share  of  the  party 


198  Coffey's  Probate  Decisions,  Yol.  1. 

applying  may  be  allowed  without  loss  to  the  creditors  of  the 
estate,  the  Court  must  make  an  order  in  conformity  with  the 
prayer  of  the  applicant,  requiring: 

"1.  Each  heir,  legatee,  or  devisee  obtaining  such  order,  be- 
fore receiving  his  share,  or  any  portion  thereof,  to  execute 
and  deliver  to  the  executor  or  administrator  a  bond,  in  such 
sum  as  shall  be  designated  by  the  court,  or  a  judge  thereof, 
with  sureties  to  be  approved  by  the  judge,  payable  to  the 
executor  or  administrator,  and  conditioned  for  the  payment, 
whenever  required,  of  his  proportion  of  the  debts  due  from 
the  estate,  not  exceeding  the  value  or  amount  of  the  legacy 
or  portion  of  the  estate  to  which  he  is  entitled; 

"2.  The  executor  or  administrator  to  deliver  to  the  heir, 
legatee,  or  devisee,  the  whole  portion  of  the  estate  to  which 
he  may  be  entitled,  or  only  a  part  thereof,  designating  it. 
If,  in  the  execution  of  the  order,  a  partition  is  necessary  be- 
tween two  or  more  of  the  parties  interested,  it  must  be  made 
in  the  manner  hereinafter  prescribed.  The  costs  of  these 
proceedings  shall  be  paid  by  the  applicant,  or,  if  there  be 
more  than  one,  shall  be  partitioned  equally  amongst  them." 

Under  section  1662  of  the  same  code  provision  is  made  as 
to  the  use  of  this  bond  and  the  manner  in  which  it  is  to  be 
enforced. 

It  appears  from  this  petition  that  the  petitioner  is  an  heir. 
She  is  the  widow,  and  in  the  sense  of  the  statute  is  included 
under  the  term  heir:  Estate  of  Rieaud,  Myr.  158. 

The  averments  of  title  in  the  decedent  and  of  his  seisin 
at  the  time  of  his  death  are  sufficient. 

For  the  purposes  of  this  petition  the  statement  of  the  char- 
acter of  the  property  is  sufficient :  Meyer  v.  Kinzer  and  Wife, 
12  Cal.  252,  253,  73  Am.  Dec.  538;  Smith  v.  Smith,  12  Cal. 
224,  73  Am.  Dec.  533;  Payne  and  Dewey  v.  Treadwell,  16 
Cal.  243 ;  Rough  v.  Simmons,  65  Cal.  227,  3  Pac.  804. 

Treating  this  petition  as  a  pleading,  it  is  sufficient.  But 
it  is  not  necessary  to  treat  a  petition  for  partial  distribution 
with  the  same  severity  that  one  would  treat  a  common-law 
pleading.  All  that  such  a  petition  need  show  is  that  the 
person  applying  has  the  status  of  an  applicant,  and  that  the 
administration  is  in  a  sufficient  state  of  forwardness  to  au- 


Estate  of  Donahue.  199 

thorize  distribution.  Whenever  the  administration  has  ad- 
vanced so  far,  it  is  the  duty  of  the  court,  on  petition  of  any 
party  interested,  to  proceed  to  partial  distribution,  and  for 
that  purpose  to  make  the  necessary  investigation  of  facts. 
But  it  is  contended  that  the  petitioner  is  incapacitated  to 
make  this  application,  by  reason  of  the  fact  that  she  is  peti-' 
tioner  for  partial  distribution  and  executrix  at  the  one  time, 
therefore,  practically,  plaintiff  and  defendant  in  the  same 
suit. 

The  demurrants  argue  that  she  cannot  act  in  the  dual 
capacity  of  executrix  and  petitioner  for  partial  distribu- 
tion; that  she  cannot  be  virtually  plaintiff  and  defendant 
in  the  same  suit;  and  support  this  proposition  by  an 
abundance  of  citations,  which  it  is  claimed  establish  the 
principle  that  the  applicant  is  not  in  a  position  to  seek 
this  remedy;  that  her  attitudes  as  executrix  and  as  an  appli- 
cant for  partial  distribution  are  irreconcilable;  that  she 
labors  under  a  disability  which  should  determine  the  appli- 
cation against  her;  and  that,  therefore,  in  form  and  substance 
this  application  is  obnoxious  to  the  demurrer.  All  the  cases 
in  support  of  this  proposition  have  been  examined  and  con- 
sidered by  the  court,  but  it  has  been  unable  to  reconcile  them 
with  the  circumstances  of  this  case. 

If  the  position  of  the  demurrants  be  true,  this  court  has 
been  proceeding  against  its  institution  upon  an  erroneous 
theorv%  for  numerous  applications  of  precisely  similar  char- 
acter have  been  made  and  granted;  one  of  the  latest  of 
which  I  find  in  the  matter  of  the  Estate  of  Daniel  T.  Murphy, 
deceased,  where  Anna  L.  Murphy,  the  widow  of  Daniel  T. 
]\Iurphy,  deceased,  and  Samuel  J.  Murphy  and  others,  the 
children  of  the  deceased,  filed  their  petition  and  application 
for  partial  distribution  of  the  estate  of  said  deceased,  which 
petition  and  application  was  granted  upon  the  execution  and 
delivery  to  Anna  L.  Murphy,  as  executrix,  of  a  bond,  with 
proper  sureties,  from  Anna  L.  Murphy,  as  widow,  and  the 
others  as  children  and  heirs  and  devisees  of  the  deceased. 
The  attorneys  for  the  applicant,  Anna  L.  IMurphy,  in  that 
case  appearing  individually  and  as  the  sole  executrix  of  the 
last  will  of  David  T.  Murphy,  detn^ased,  were  Messrs.  McAl- 


200  Coffey's  Probate  Decisions,  Vol.  1. 

lister  &  Bergin;  Estate  of  Daniel  T.  Murphy,  Deceased,  No. 
4,313.  Decree  of  Partial  Distribution.  Filed  March  4, 
1887.  See,  also.  Estate  of  Silas  W.  Sanderson,  Deceased  (No. 
5,464). 

Assuming,  then,  that  the  question  of  the  giving  of  a  bond 
is  in  order  at  this  stage  of  the  proceedings,  the  answer  to 
the  objection  of  the  demurrants  is  that  the  law  is  so  writ- 
ten, and  that  as  written  it  has  been  uniformly  applied  in 
cases  differing  in  no  essential  particular  from  the  one  now 
before  the  court. 

The  demurrer  overruled.     Ten  days  to  answer. 


An  Heir,  Devisee  or  Legatee  may,  at  any  time  after  the  lapse  of  four 
months  from  the  issuance  of  letters  testamentary  or  of  administra- 
tion, present  a  petition  for  the  share  of  the  estate  to  which  he  is 
entitled,  or  any  portion  thereof,  to  be  given  him  upon  his  furnish- 
ing security  for  the  payment  of  his  proportion  of  the  debts  of  the 
estate:  Cal.  Code  Civ.  Proc.  1658.  No  one  but  an  heir,  devisee  or 
legatee  (Estate  of  Foley,  24  Nev.  197,  51  Pac.  834,  52  Pac.  649),  or 
his  assignee  or  grantee  (Estate  of  Straus,  144  Cal.  553,  77  Pac.  1122) 
can  petition  for  a  partial  distribution.  An  executor  or  administrator, 
as  such,  has  no  authority  to  file  a  petition:  Alcorn  v.  Buschke,  133 
Cal.   655,   66  Pac.   15;   In  re   Letellier,   74   Cal.   312,   15   Pac.   847. 

The  Codes  Make  no  Attempt  to  Prescribe  the  Form  and  Contents 
of  petitions  for  partial  distribution,  and  clearly  do  not  contemplate 
or  require  elaborate  pleadings  in  such  proceedings:  Estate  of  Mur- 
phy, 145  Cal.  464,  78  Pac.  960.  For  forms  of  petitions,  see  Estate 
of  Levison,  98  Cal.  654,  33  Pac.  726;  Estate  of  Crocker,  105  Cal. 
368,  38   Pac.  954. 


Guardianship  of  the  Person  of  WILLIE  McGARRITY, 

Minor. 

[No.   3,386;    decided   June   4,   1884.] 

Guardianship — Wishes  of  Deceased  Mother. — In  the  appointment  of 
a  guardian  for  a  minor^  the  court  must  regard  the  dying  declaration 
of  the  mother  as  to  her  wishes  in  the  premises,  when  not  inconsistent 
with   the   welfare   of   the   child. 

Guardianship — Religious  Instruction  of  Ward. — Where  a  child  is  bap- 
tized in  a  particular  faith  to  which  its  mother  belonged,  the  guar- 
dian of  the  child  should  secure  to  her  instruction  in  the  faith  of  the 
mother,  until  the  child  arrives  at  an  age  when  she  is  presumptively 
competent  to  determine  her  own  doctrine  of  religion. 


Guardianship  of  McGarrity.  201 

On  May  27,  1884,  Mary  L.  Graves  filed  a  petition  to  be 
appointed  guardian  of  the   person   of  Willie  McGarrity. 

The  petitioner  averred  that  the  minor  is  a  resident  of  San 
Francisco;  that  both  her  parents  are  dead;  that  petitioner  is 
the  sister  of  the  deceased  mother  of  the  minor;  that  Sarah 
C.  Bachelder  is  also  a  sister  of  the  deceased  mother,  and 
Thos.  F.  Conklin  a  brother.  The  petition  also  contained  the 
further  necessary  averments. 

A  citation  was  issued  to  the  aunt  not  petitioning-  and  the 
uncle,  returnable  on  June  3,  1884,  at  which  time  the  appli- 
cation was  heard;  the  facts  proved  on  the  hearing  appear 
from  the  opinion  of  the  court. 

John  M.  Burnett,  for  petitioner. 

COFFEY,  J.  In  this  matter  it  appears  from  the  evidence 
of  Mrs.  Graves,  the  applicant,  and  of  her  brother,  Thomas 
F.  Conklin,  and  Mrs.  Cathcart,  a  friend  of  the  family,  that 
the  mother  of  the  minor  upon  her  deathbed  desired  her  sister, 
the  petitioner  here,  to  take  care  of  "Willie,"  the  minor. 
She  desired  her  brother  (Mr.  Conklin)  and  her  sister  (Mrs. 
Graves)  to  take  care  of  the  child.  There  is  no  formal  oppo- 
sition to  the  application,  but  the  minor  appears  in  court 
accompanied  by  her  aunt,  Mrs.  Bachelder,  sister  of  decedent 
and  of  applicant;  and  Mrs.  Bachelder  testifies  that  the  child 
was  committed  to  her  care  and  custody  by  the  mother  during 
the  latter 's  illness  and  pending  an  operation  upon  her,  and 
the  child  has  remained  there  ever  since,  and  desires  to  remain 
there. 

All  the  parties  are  respectable  and  harmonious  in  their 
mutual  relations,  and  there  is  no  individual  incapacity  in 
either  case.  This  being  the  fact,  the  court  must  regard  the 
proved  dying  declaration  of  the  mother,  when  it  is  not  incon- 
sistent with  the  welfare  of  the  child.  While  the  child  mani- 
fests a  tender  devotion  to  Mrs.  Bachelder,  she  evinces  no 
aversion  toward  ]\Irs.  Graves,  her  mother's  particular  and 
final  choice,  and  the  latter  is  amply  competent,  pecuniarily 
and  otherwise,  to  maintain  the  child.  The  child's  true  name 
is  Lucy;  she  was  baptized  in  the  Catholic  Church,  to  which 
her  mother  belonged   (according  to  the  child's  statement  to 


202  Coffey's  Probate  Decisions,  Vol.  1. 

the  court),  and  the  guardian  must  be  required  to  secure  the 
minor  instructions  in  the  faith  of  the  mother  until  the  child 
arrives  at  an  age  when  she  shall  be  presumptively  competent 
to  determine  her  own  doctrine  of  religion.  The  minor  is  a  very 
intelligent  girl  between  ten  and  eleven  years  of  age,  with 
strong  sentiments  of  affection  toward  her  aunt,  Mrs.  Bach- 
elder,  who  must  be  allowed  to  see  her  as  frequently  as  prac- 
ticable; and  also  Mr.  Conklin  will  have  the  same  privilege 
guaranteed  in  the  order  of  the  court.  The  custody  of  the 
child  is  awarded  to  Mrs.  Graves,  under  the  intimated  re- 
strictions, and  with  bond  fixed  at  $500. 


Estate  of  JEREMIAH  WHALEN,  Deceased. 

[No.  2,328;  decided  February  11,  1885.] 

Unsolemnized  Marriage — Evidence  to  Establish. — Where  it  appears 
that  parties,  without  the  sanction  of  any  ecclesiastical  ceremony, 
agreed  between  themselves  to  live  together  as  man  and  wife,  and 
did  live  as  such  in  one  place  of  domicile  for  years,  and  in  .other 
places,  and  so  held  themselves  out  to  others  moving  in  the  same 
limited  social  sphere;  and  it  further  appears  that  each  of  the  parties 
testified  in  a  legal  controversy,  wherein  they  were  both  called  as  wit- 
nesses, to  being,  respectively,  married  persons,  and  stated  their  re- 
spective places  of  habitation  to  be  where  in  fact  they  lived  together 
at  the  time,  their  marriage  is  proved. 

Unsolemnized  Marriage — Evidence  to  Establish. — Where  persons 
called  to  prove  that  a  man  and  woman  lived  as  husband  and  wife 
and  held  themselves  out  as  such  to  others  living  in  the  same  social 
sphere,  are  credible  witnesses,  no  matter  how  circumscribed  is  their 
social   environment,   their  testimony   is  sufficient   to    establish    repute. 

Unsolemnized  Marriage — Declarations  to  Support. — Where  it  ap- 
pears that  an  alleged  spouse  of  an  unsolemnized  marriage  has  testi- 
fied as  a  witness,  subsequently  to  the  alleged  marriage,  that  he  was 
a  married  man,  such  declaration  is  the  most  important  evidence  that 
can  be   offered  in  support  of  such   a   marriage. 

Marriage. — Where  the  Relation  of  Husband  and  Wife  is  Once  Es- 
tablished, no  subsequent  conduct  of  either  spouse,  which  does  not 
culminate  in  a  legal  dissolution,  can  affect  the  judicial  determination 
of  the   question  of  their  status. 


Estate  of  Whalen.  203 

Letters  of  administration  were  granted  herein  to  Philip  A. 
Roach,  as  public  administrator,  on  March  20,  1883.  Subse- 
qnently  Henrietta  C.  Whalen  gave  and  filed  notice  of  her 
appearance  in  the  administration,  as  the  surviving  wife  of 
the  decedent ;  and  thereafter,  at  the  proper  stage  of  the 
administration,  on  November  19,  1883,  filed  her  application 
for  a  distribution  of  the  estate,  claiming  a  share  thereof  as 
the  widow  of  the  deceased.  This  application  was  opposed 
by  Joseph  L.  Whalen,  a  brother,  and  Jane  E.  Gregory,  a 
niece  of  the  decedent,  upon  the  ground  that  the  petitioner 
was  not  the  surviving  wife  of  the  decedent,  as  claimed  by  her. 
The  opinion  of  the  court  below  was  rendered  after  consid- 
eration of  the  testimony  produced  in  support  of  the  issue 
tendered  by  the  opposition;  and,  in  accordance  with  the  deci- 
sion of  the  court,  distribution  of  the  estate  was  thereafter 
ordered,  on  February  11,  1885. 

M.  S.  Eisner,  for  the  petitioner,  Henrietta  C.  Whalen. 

M.  Lynch,  contra,  for  decedent's  brother  and  niece. 

COFFEY,  J.  In  this  matter  all  the  propositions  of  law 
are  undisputed ;  the  only  question  is  as  to  two  or  three  matters 
of  fact.  The  applicant,  Henrietta  C.  Whalen,  claims  that 
she  entered  upon  the  marriage  state  with  the  decedent  in 
the  city  and  county  of  San  Francisco  after  a  brief  acquaint- 
ance— a  year  or  more — without  the  sanction  of  any  eccle- 
siastical ceremony,  but  after  an  agreement  between  them  to 
live  together  as  man  and  wife,  followed  by  an  immediate 
assumption  of  marital  relations;  and  they  continued  to  co- 
habit for  several  years,  except  at  intervals  when  she  went  to 
the  country  on  account  of  her  health,  being  troubled  with  a 
neuralgic  affection  which  was  aggravated  at  seasons  by  the 
climate  of  San  Francisco,  according  to  her  testimony.  For 
years  these  two  lived  together  in  the  northeast  corner  of 
Kearny  and  Jackson  streets,  and  in  other  places,  as  man  and 
wife,  and  held  themselves  out  as  such  to  others  moving  in 
the  same  limited  social  sphere;  this  is  proved  by  the  evi- 
dence of  j\Tr.  ThurstoTi,  Mr.  Findley  and  IMrs.  Taylor  (or 
McCarthy  as  she  is  now)  and  her  daughters  and  son.  They 
are  credible  witnesses,  and  no  matter  how  circumscribed  their 


204  Coffey's  Probate  Decisions,  Vol.  1. 

social  environment  it  is  sufficient  to  establish  repute.  Mrs. 
Whalen  herself  testified  that  she  was  not  in  the  habit  of 
making  acquaintances,  but  "was  a  great  hand  to  stay  at 
home,"  and  that  neither  before  nor  after  marriage  did  she 
visit  families,  except  those  in  the  house  wherein  she  was 
domiciled. 

There  is  one  fact  in  evidence  which  is  more  important  than 
any  other — the  pivotal  fact  of  this  case,  namely,  the  oath- 
bound  declaration  of  Jeremiah  Whalen,  the  decedent,  made 
at  a  time  while  he  and  Henrietta  were  living  on  the  north- 
east corner  of  Kearny  and  Jackson  streets,  which  shows 
not  only  that  they  had  a  habitation  there,  but  that  they 
held  to  each  other  the  relation  of  husband  and  wife.  This 
is  more  important,  I  say,  in  support  of  applicant's  case  than 
any  other  fact  in  evidence,  because  you  cannot  take  a  man's 
declaration  in  a  more  solemn  way  than  when  on  the  witness- 
stand  under  the  sanction  of  an  oath,  and  examined  under 
the  forms  of  law  and  with  a  knowledge  of  the  pains  and  pen- 
alties of  perjury,  and  the  consecpiences  of  his  declaration 
with  regard  to  his  family  circumstances  and  the  influence  of 
his  statement  upon  his  private  fortune.  Under  such  circum- 
stances in  the  case  of  Wight  v.  Wight,  before  Court  Com- 
missioner Robert  C.  Rogers,  in  1866,  Jeremiah  Whalen,  the 
decedent,  swore  that  he  was  a  married  man  and  lived  in  this 
house ,  northeast  corner  Kearny  and  Jackson  streets. 

The  applicant  here  Avas  examined  in  the  same  controversy 
before  Commissioner  Rogers,  and  testified  that  she  was  a 
married  woman  living  with  her  husband,  and  that  her  name 
was  Henrietta  C.  Whalen,  and  that  she  lived  in  that  house 
at  the  time  of  her  testimony.  She  signed  her  name  "Henri- 
etta C.  Whalen."  It  should  seem  that  these  two  persons  were 
no  other  than  the  decedent  and  the  applicant;  and  by  their 
own  statements  contemporaneously  made,  and  in  the  same 
proceedings  under  judicial  oath,  they  sustained  to  each  other 
the  relation  of  husband  and  wife.  These  declarations  seem 
to  me  to  be  sufficient  corroboration  of  applicant's  testimony 
as  to  the  contraction  and  consummation  of  the  marriage 
and  the  subsequent  continuous  cohabitation  for  years.  In 
addition,   while   she   was   absent   from   the   city  Mr.   Whalen 


Estate  of  Whalen.  205 

constantly  corresponded  with  her,  although,  except  in  one 
instance,  he  did  not  address  her  as  "my  dear  wife,"  or  sub- 
scribe himself  as  husband,  yet  he  superscribed  his  letters  to 
her  by  his  own  surname,  "Mrs.  Henrietta  C.  Whalen."  That 
is  a  public  recognition,  which  was  fortified  by  declarations 
made  more  than  once  to  persons  who  addressed  him ;  j\Ir. 
John  H.  Harney,  for  one,  a  fellow-clerk  in  a  public  office, 
when  the  latter  found  on  INIr.  Whalen 's  desk  a  letter  so 
superscribed ;  also  at  another  time  to  Mons.  Perrier,  the  res- 
taurateur. These  declarations  were  made  at  a  very  late  date 
long  after  the  informal  nuptials.  Mrs.  Whalen,  for  reasons 
already  suggested  by  her,  left  this  city  and  went  into  the 
interior  and  to  the  mountains,  and  pursued  an  irregular 
life  for  years;  but,  as  I  have  had  occasion  to  say  in  an- 
other case,  "once  establish  the  relation  of  husband  and  wife 
between  these  parties  and  the  subsequent  conduct  of  either 
of  them,  which  does  not  culminate  in  a  legal  dissolution,  can- 
not affect  the  judicial  determination  of  the  question  of  their 
status."  She  may  have  misconducted  herself,  may  have 
been  a  bigamist,  subsequently,  still  her  legal  rights  were 
vested  by  the  law,  which  courts  sit  to  administer,  not  to  set 
aside;  the  judge's  personal  views  as  to  such  marriages  or  such 
misconduct  should  not  affect  the  court's  administration  or 
application  of  the  law.  The  court  finds  the  fact  and  applies 
the  law ;  it  finds  the  facts  proved  as  alleged,  and  that  the 
applicant  is  the  surviving  Avife  of  the  decedent  intestate, 
Jeremiah  Whalen.  His  own  conduct  inconsistent  with  his 
relation  to  Henrietta — the  fact  that  he  led  Mrs.  Stees,  a 
witness  in  this  proceeding,  to  believe  that  he  was  unmarried, 
does  not  detract  from  the  strength  of  what  has  been  said. 
Mrs.  Stees'  testimony  may  be  taken  as  true,  and.  so  far  as 
this  discussion  is  concerned,  there  is  no  necessity  of  imputing 
inveracity  to  any  witness  in  this  proceeding;  Mrs.  Stees' 
statement  need  not  be  challenged — her  own  eccentricity  of 
matrimonial  conduct  has  no  bearing  upon  her  credit  as  a  wit- 
ness; and  accepting  her  testimony  as  truthful,  it  would  appear 
that  Jeremiah  Whalen,  for  the  purpose  of  deceiving  her  and 
contracting  an  alliance  with  her,  discarded  his  first  spouse 
and  led  the  witness  to  believe  that  he  was  a  free  man.     Cases 


206  Coffey's  Probate  Decisions,  Vol.  1. 

f 

of  that  kind  are  so  numerous  that  it  is  not  necessary  to  dilate 
thereupon. 

So  far  as  such  a  marriage  can  or  need  be  established,  it 
has  been  established  in  this  case.  The  prayer  of  the  peti- 
tioner is  granted.  Let  the  appropriate  decree  be  framed  and 
submitted  to  the  court. 


Estate  op  JEANNETTE  HELD,  Deceased. 

[No.    3,025;    decided    June    30,    1884.] 

Special  Administrator — Person  Entitled,  to  Letters. — In  making  the 
appointment  of  a  special  administrator,  the  court  must  give  pref- 
erence to  the  person  entitled  to  letters  testamentary  or  of  adminis- 
tration, unless  he  is  shown  incompetent  for  the  position.  The  court 
has  no  discretion. 

Special  Administrator — Want  of  Integrity  and  Improvidence. — The 

evidence  in  this  case  is  held  insufficient  to  establish  improvidence 
or  want  of  integrity  on  the  part  of  the  applicant  for  special  letters 
of  administration. 

On  June  9,  1884,  John  E.  Hammersmith  filed  his  petition 
for  special  letters  upon  the  estate  of  the  above-named  dece- 
dent. He  alleged  that  she  died  in  San  Francisco,  a  resident 
thereof  and  leaving  estate  therein,  on  December  9,  1883 ;  that 
she  left  a  last  will  and  testament  dated  July  2,  1883,  wherein 
he,  petitioner,  was  named  as  executor;  that  he  was  a  son  of 
decedent ;  that  on  December  19,  1883,  he  filed  the  will  together 
with  a  petition  for  its  probate  and  for  his  appointment  as 
executor  thereof,  but  that  the  probate  of  such  will  was  being 
contested  and  a  special  administrator  was  necessary.  Peti- 
tioner based  his  application  on  sections  1411,  1412  and  1413, 
Code  of  Civil  Procedure,  and  the  petition  contained  the 
further  usual  averments. 

This  application  was  opposed  by  Amelia  Haxe,  a  daughter 
of  deceased,  who  asked  that  special  letters  be  issued  to  the 
public  administrator. 

It  was  asserted  that  the  applicant  claimed  certain  property 
to  be  his  own,  which  was  alleged  to  be  a  part  of  the  estate , 


Estate  of  Held.  207 

of  the  decedent,  and  that  he  claimed  interests  adverse  to  said 
estate;  also  that  he  had  without  right  or  authority  assumed 
to  take  charge  of  the  estate  of  decedent  since  her  death,  and 
had  improvidently  managed  the  same;  as  to  the  claim  of 
the  applicant  to  certain  property  alleged  to  belong  to  the 
estate,  it  was  shown  that  shortly  before  her  death  the  dece- 
dent had  executed  a  deed  to  him  of  certain  real  estate,  under 
which  he  asserted  title  in  his  own  right,  which  deed  was 
claimed  to  be  void  on  various  grounds ;  and  the  invalidity  of 
this  deed  was  set  up  as  a  circumstance  to  prove  the  lack  of 
integrity  of  the  applicant ;  as  to  his  improvidence,  it  was 
claimed  that  while  he  had  assumed  control  of  the  estate,  he 
had  permitted  certain  premises  belonging  to  it  to  remain  idle 
for  some  time,  and  that  this  was  "improvidence"  within  the 
meaning  of  the  code ;  the  applicant  had  also  expended  $1,000 
of  the  moneys  of  the  estate  as  a  retainer  to  his  attorneys,  on 
the  contest  of  the  will,  and  it  was  claimed  that  he  had  no 
right  to  pay  attorneys'  fees  out  of  the  estate  until  he  should 
be  appointed  executor,  and  that  this  was  also  ' '  improvidence. ' ' 

Thos.  I.  Bergin,  for  John  E.  Hammersmith,  applicant. 

Geo.  Flournoy,  for  Mrs.  Amelia  Haxe,  opposed. 

Thos.  V.  O'Brien,  for  Gustave  Held,  absent  heir. 

Thos.  F.  Barry,  for  Haxe  minors. 

H.  E.  Highton,  for  Russ  minors. 

COFFEY,  J.  Applicant  is  the  son  of  decedent  and  named 
in  the  will  offered  for  probate  as  executor.  He  is  of  legal  age 
and  prima  facie  competent  and  eligible  under  the  statute : 
Code  Civ.  Proc,  sec.  1413. 

It  is  suggested  that  he  is  not  a  proper  person  to  take  letters 
by  reason  of  lack  of  integrity    and    also    "improvidence" 
(Code  Civ.  Proc,  sec.  1369,  subd.  4)  ;  but  this  is  not  estab- 
lished; it  is  "not  proven";  and,  in  view  of  that,  the  court 
has  no  discretion  to  deny  this  application. 

Granted. 


In  Appointing  a  Special  Administrator,  the  court  must  give  pref- 
erence  to    the    jiiTKon    entitled    to    letters   testamentary    or    of    admin- 


208  Coffey's  Probate  Decisions,  Vol.  1. 

istration  (Cal.  Code  Civ.  Proc.  1413;  Ariz.  Eev.  Stats.  1689;  Ida. 
Rev.  Stats.  5392;  Mont.  Code  Civ.  Proc.  2502;  Nev.  Comp.  Laws, 
2857;  Okl.  Rev.  Stats.  1573;  S.  D.  Pro.  Code,  121;  Utah  Rev.  Stats. 
3823;  Wyo.  Rev.  Stats.  4641);  but  no  appeal  lies  from  the  order  of 
appointment:  Estate  of  Carpenter,  73  Cal.  202,  14  Pac.  677;  Estate 
of  Ohm,  82  Cal.  160,  22  Pac.  927. 

The  Courts  have  no  Authority  to  Add  to  the  Disqualifications  of 
Administrators  which  have  been  prescribed  by  the  legislature,  nor 
to  decline  to  issue  letters  to  one  who  possesses  the  statutory  right 
to  them:  Estate  of  Muersing,  103  Cal.  585,  37  Pac.  520;  Estate  of 
Brundage,  141  Cal.  538,  75  Pac.  175;  Estate  of  Carmody,  88  Cal.  616, 
26  Pac.  373.  As  to  what  improvidence  or  lack  of  integrity  will  dis- 
qualify a  person  to  act  as  administrator,  see  Estate  of  Carmody,  88 
Cal.  616,  26  Pac.  373;  Estate  of  Newman,  124  Cal.  688,  57  Pac.  686, 
45  L.  R.  A.  780;  Root  v.  Davis,  10  Mont.  228,  25  Pac.  105;  Estate 
of  Courtney,  31  Mont.  625,  79  Pac.  317. 


Estate  of  PETER  G.  PARTRIDGE,  Deceased. 

[No.   3,308;   decided   August   26,   1886.] 

Inventory. — An  Administrator  must  Make  a  True  Inventory  and 
appraisement  of  all  estate  of  the  decedent  coming  to  his  possession 
or  knowledge;  and  he  is  accountable  with  respect  to  this  duty. 

Inventory — Adverse  Claim  Against  Property. — If  any  portion  of  a 
decedent's  estate  is  the  subject  of  an  adverse  claim,  it  is  prudent  on 
the  part  of  the  administrator  to  add  a  memorandum  to  the  inventory, 
stating  the  asserted  claim.  But  the  property  must  be  inventoried; 
the  administrator  cannot  stand  neutral  because  the  decedent 's  title 
is  disputed. 

Inventory — Property  Claimed  Adversely  to  Estate. — An  adminis- 
trator cannot  omit  to  inventory  property  said  to  belong  to  his  in- 
testate which  is  the  subject  of  an  adverse  claim,  on  the  pretense 
that  he  wants  to  stand  neutral  between  the  estate  and  the  adverse 
claimant,  leaving  the  merits  of  the  controversy  to  the  court's  de- 
termination. The  administrator  cannot  assume  an  attitude  of  neu- 
trality; the  statute  points  out  his  duty;  and  for  the  court  to  pass 
upon  the  merits  of  the  adverse  claim  would  be  to  assume  a  jurisdic- 
tion which,  in  probate,  it  cannot  exercise. 

Inventory — Disputed  Title. — The  Probate  Court  ought  not,  it  seems, 
to  reject  an  inventory  of  a  decedent's  estate,  or  order  it  modified, 
because  it  contains  property,  the  title  to  which  is  disputed. 


Estate  of  Partridge.  209 

Inventory — Trying  Questions  of  Title. — Where  part  of  an  inven- 
toried estate  of  a  decedent  is  in  dispute,  the  adjudication  of  the 
title  belongs  to  common-law  tribunals;  a  probate  court  cannot  con- 
clude the  question. 

On  September  28,  1885,  Annie  E.  Partridge  filed  an 
affidavit  and  petition,  the  statements  in  each  being  the  same, 
viz. :  That  she  was  interested  in  the  estate  as  one  of  the  dis- 
tributees thereof;  that  decedent  at  time  of  his  death  owned 
and  possessed  certain  bonds  of  the  city  of  Sacramento,  of  the 
face  value  of  $25,300  (with  interest),  and  of  the  actual  value 
of  over  fifty  cents  on  the  dollar;  that  upon  information  and 
belief,  the  said  bonds  have,  since  decedent's  death,  been  in 
possession  or  under  control  of  John  Partridge,  the  agent  of 
the  administrator  in  the  matters  of  the  estate;  that  on  Sep- 
tember 14,  1885,  she  made  demand  on  the  administrator 
(Antoine  Borel)  to  inventory  said  bonds  as  a  part  of  said 
estate,  "and  the  said  Borel  informed  affiant  that  he  would 
take  no  action,  either  for  or  against  said  estate,  in  the  matter 
of  said  demand."  That  said  bonds  are  not  mentioned  or 
included  in  the  inventory  of  said  estate  on  file.  In  response 
to  a  citation  issued,  the  administrator  made  answer  on  Octo- 
ber 6,  1885,  setting  forth  substantially  that  the  decedent  left 
a  will,  which  was  duly  admitted  to  probate,  in  and  by  which 
decedent's  brother,  Patrick  M.  Partridge,  was  made  the  sole 
legatee  and  devisee;  that  decedent  left  him  surviving  a  son, 
Louis  G.  Partridge,  of  the  age  of  majority,  who  was  the  hus- 
band of  petitioner,  Annie  E.  Partridge;  that  by  reason  of 
a  claim  of  the  invalidity  of  the  will  set  up  by  the  son,  nego- 
tiations were  entered  into  between  the  said  son  and  the 
aforesaid  devisee,  which  resulted  in  an  agreement  whereby 
the  son  withdrew  his  opposition  to  the  will  and  consented  to 
its  probate,  in  consideration  that  the  devisee  should  assign 
the  son  one-half  of  the  decedent's  estate;  that  the  John  Part- 
ridge mentioned  in  Annie  E.  Partridge's  petition  is  the  son  of 
the  devisee.  Patrick  M.,  and  for  many  years  prior  to  dece- 
dent's death  was  employed  by  him  in  his  business  matters ;  that 
in  course  of  the  negotiations  between  the  said  Louis  G.  and 
Patrick  M.,  it  became  known  that  said  John  was  in  possession 
of  the  bonds  referred  to  in  Annie  E.  Partridge's  petition, 

Prob.  Dec,  Vol.  I — 14 


210  Coffey's  Probate  Decisions,  Vol.  1. 

and  that  he  claimed  to  be  the  owner  of  them;  also  that  he 
had  a  large  claim  against  decedent  for  services  performed; 
that  therefore,  to  effect  a  settlement  of  all  matters  of  contro- 
versy, it  was  agreed  between  John  and  Louis  G.  that  upon 
the  admission  of  the  decedent's  will  to  probate  John  should 
receive  $1,500  from  Louis  Gr.,  and  the  latter  should  consent 
that  the  said  bonds  were  and  should  be  considered  as  the 
property  of  John  and  not  of  decedent's  estate,  and  John 
should  waive  all  claims  against  the  decedent's  estate,  and 
against  Louis  G. 

On  October  17,  1885,  the  said  administrator,  Borel,  filed 
an  amended  answer  to  the  aforesaid  petition  of  Annie  E. 
Partridge,  in  which  he  set  forth  that  the  inventory  of  the 
decedent's  estate  returned  and  filed  by  him  contained  all 
the  property  of  the  estate  coming  to  his  knowledge  or  posses- 
sion; that  there  was  no  other  property  except  that  returned 
in  the  inventory;  a  denial  that  decedent  owned  the  bonds 
mentioned  in  the  petition ;  or  that  the  bonds  had  ever  been  in 
his  (Borel's)  possession,  or  under  his  control;  or  that  John 
Partridge  had  been  his  agent  as  administrator  or  otherwise. 
Alleged,  upon  information  and  belief,  that  the  bonds  were 
never  the  property  of  decedent,  and  never  formed  part  of  his 
estate.  The  opinion  below  was  delivered  upon  the  hearing 
of  the  order  to  show  cause  made  upon  the  petition,  and  the 
answers  of  the  administrator. 

T.  Z.  Blakeman,  for  applicant,  A.  E.  Partridge. 

E.  S.  Pillsbury,  for  John  Partridge,  claimant. 

S.  V.  Smith,  for  A.  Borel,  administrator. 

COFFEY,  J.  This  is  an  application  to  compel  the  admin- 
istrator to  include  in  his  inventory  certain  bonds — "Sacra- 
mento County  Bonds" — alleged  to  belong  to  the  estate  of 
Peter  G.  Partridge,  deceased.  The  administrator  makes 
response  that  the  reason  of  his  omission  was  and  is  that  John 
Partridge,  nephew  of  deceased  testator  and  son  of  Patrick 
M.  Partridge,  the  sole  devisee  and  legatee  under  the  will  of 
Peter  G.,  asserted  title  to  the  lands,  which  title  was  recog- 
nized by  the  disinherited  only  son  of  deceased  testator,  Louis 


Estate  of  Partridge.  211 

Partridge,  now  deceased,  whose  surviving  widow  is  the  mov- 
ing part}'  in  this  proceeding.  The  agreement  between  Louis 
and  John  was  in  writing.  There  were  only  two  persons  in- 
terested in  the  subject  matter  at  that  time,  Louis,  the  disin- 
herited child,  and  Patrick  M.,  resident  in  Canada,  who  was 
the  universal  devisee  and  legatee.  Betw^een  these  two  a 
settlement  was  made  outside  of  court,  and  without  opposition 
the  will  was  admitted  to  probate.  Thereafter  the  controversy 
between  Louis  and  John  about  the  ownership  of  the  bonds 
was  apparently  adjusted.  In  this  hearing  the  administrator 
stood  aside,  as  a  "neutral"  spectator,  professing  willingness 
to  submit  to  any  order  the  court  might  make,  after  taking 
testimony,  as  to  the  transaction  between  Louis  and  John. 
John  Partridge  then  came  in,  represented  by  special  counsel, 
and  has  undertaken  to  show  that,  inasmuch  as  he  owned  and 
owns  the  bonds  in  question,  the  administrator  cannot  be 
obliged  to  include  them  in  the  inventory.  The  administrator 
cannot  assume  an  attitude  of  neutrality.  He  must,  under 
the  statute  (Code  Civ.  Proc,  sec.  1443  et  seq.),  make  a  true 
inventory  and  appraisement  of  all  the  estate  which  has  come 
to  his  possession  or  knowledge,  and  he  is  accountable  therefor. 
If  any  portion  of  the  estate  is  claimed  by  others,  it  seems 
prudent  to  include  this  item  in  the  list,  with  words  or  a 
memorandum  stating  the  asserted  claim:  Schouler's  Execu- 
tors and  Administrators,  sec.  233. 

Without  reference  in  any  manner  to  the  character  of  the 
transaction  between  John  Partridge  and  the  deceased  Louis, 
it  is  clear  that  the  administrator  should  have  included  the 
disputed  item  in  his  inventory.  The  only  reason  why  the 
decision  has  been  deferred  is  that  the  court  was  desirous  of 
placing  the  parties  upon  an  equal  footing  in  any  litigation 
as  to  the  title  in  another  tribunal.  After  a  full  and  anxious 
consideration  of  the  whole  matter,  a  consideration  of  the  argu- 
ments and  briefs  and  review  of  the  testimony,  I  am  convinced 
that  the  correct  conclusion  is  that  the  administrator  should 
inventory  these  l)onds.  Any  other  conclusion  would,  in  my 
judgment,  be  equivalent  to  assuming  a  jurisdiction  which 
this  court  sitting  in  probate  may  not  exercise. 


212  Coffey's  Probate  Decisions,  Vol.  1. 

A  court  of  probate  ought  not,  it  would  appear,  to  reject 
an  inventory,  or  order  it  modified,  because  it  contains  prop- 
erty, the  title  to  which  is  disputed:  for  to  common-law  tri- 
bunals belongs  the  adjudication  of  the  title,  and  the  probate 
court  cannot  conclude  the  question:  Schouler's  Executors  and 
Administrators,  sec.  236;  Gold's  Case,  Kirby  (Conn.),  100 
(see  opinion  on  page  103). 

Application  granted. 


When  Dou"bt  Arises  as  to  Whether  any  Particular  Piece  or  Arti- 
cle of  Property  should  be  inventoried  as  a  part  of  the  estate  of  a 
decedent,  the  court  may  institute  an  inquiry,  and  hear  evidence  to 
ascertain  the  ownership  of  such  property;  not  for  the  purpose  finally 
to  determine  the  title,  for  that  would  exceed  the  jurisdiction  of  the 
probate  court,  but  to  determine,  prima  facie,  whether  the  property 
belongs  to  the  estate  and  should  be  inventoried.  The  investigation 
involves  the  bona  fides  of  the  claimants  and  the  faithfulness  to  his 
trust  of  the  executor  or  administrator;  and  the  determination  of 
these  questions  may  serve  as  a  basis  for  compelling  him  to  inventory 
the  property,  or  for  removing  him  from  office.  But  the  adjudica- 
tion of  the  court,  or  the  recitals  of  the  inventory,  are  not  conclu- 
sive in  another  forum  of  the  decedent's  ownership,  either  as  against 
third  persons  or  against  the  executor  or  administrator:  Estate  of 
Eathgeb,  125  Cal.  302,  57  Pac.  1010;  Lamme  v.  Dodson,  4  Mont.  560, 
2  Pac.  298;  Estate  of  Bolander,  38  Or.  493,  63  Pac.  689;  Estate  of 
Belt,  29  Wash.  535,  70  Pac.  74.  The  valuations  given  in  the  inven- 
tory are  not  conclusive  for  any  purpose:  Estate  of  Hinckley,  58  Cal. 
457,  516;  Estate  of  Simmons,  43  Cal.  543. 


Estate  of  JEAN   PIERRE   RICAUD,   Deceased. 

[No.  7,754,  former  Probate  Court;  decided  November  7,  1883.] 

A  Legatee  of  a  Specific  Beciuest  can  Take  Only  Such  Interest  in 

the  property  bequeathed  as  the  testator  had  a  right  or  power  to  dis- 
pose of  by  will. 

Where  Property  Specifically  Bequeathed  is  Sold  Under  Order  of 
Court,  the  legatee  is  not  entitled  to  the  proceeds  before  distribution, 
but  the  same  must  be  held  subject  to  administration. 

An  Executor  can  be  Allowed  Commissions  only  upon  the  amount 
the  estate  accounted  for  by  him;  and  he  cannot  be  said  to  have 
accounted  for  property  as  part  of  the  estate  of  his  testator,  to  which 
it  has  judicially  been  determined  that  the  estate  has  no  title. 


Estate  of  Ricaud.  213 

Jean  Pierre  Ricaud  died  April  1,  1877,  in  San  Francisco, 
a  resident  thereof,  and  leaving  estate  therein. 

He  left  a  last  will  and  testament,  dated  March  26,  1877, 
in  which  Francois  Larroche  and  Leon  Auradou  were  named 
as  executors.  Upon  petition  filed  by  them  on  April  6,  1877, 
the  will  was  admitted  to  probate,  and  they  were  appointed 
executors  thereof  on  April  26,  1877,  and  letters  testamentary 
were  issued  to  them  on  April  28,  1877. 

A  part  of  the  estate  consisted  of  a  saloon,  which  the  dece- 
dent bequeathed  to  his  brother,  Michael  Ricaud. 

On  May  2,  1877,  the  executors,  at  the  request  of  this  legatee, 
filed  a  petition  praying  for  an  order  of  sale  of  this  saloon, 
on  the  ground  that  its  chief  value  consisted  in  its  goodwill, 
and  that  unless  it  could  be  kept  open  it  would  depreciate  in 
value  and  become  worthless,  and  that  its  stock  of  wines  and 
liquors  was  diminishing  by  daily  sales,  and  that  they  did 
not  feel  authorized  to  expend  the  money  of  the  estate  in 
replenishing  it.  An  order  of  sale  was  accordingly  made  on 
said  day,  and  the  saloon  was  thereafter  sold,  with  the  assent 
of  the  legatee,  for  $2,000,  and  the  sale  confirmed  by  the  court. 

On  August  30,  1878,  the  executors  filed  their  first  account, 
from  which  it  appeared  that  the  saloon  had  been  sold  under 
the  order  of  court  for  $2,000,  and  the  proceeds  paid  to  the 
legatee  by  the  executors. 

On  September  13,  1878,  ]\Iaria  Ricaud,  the  widow  of  the 
ilecedent,  filed  exceptions  to  this  account,  and  contested  this 
])ayment  to  the  legatee,  on  the  ground  that  the  same  was  unau- 
thorized and  illegal,  but  the  question  was  reserved  by  the 
court  for  future  consideration,  and  the  account,  with  the 
exception  of  this  item,  settled. 

On  August  13,  1883,  the  executors  filed  their  second 
account,  to  which  exception  was  again  taken  by  the  widow, 
on  the  same  ground. 

The  contestant  also  excepted  to  the  amount  claimed  by 
the  executors  as  commissions,  the  facts  in  relation  to  which 
matter  are  as  follows:  There  was  included  in  the  inventory 
and  appraisement  filed  in  the  matter  of  the  estate  certain 
real  property  valued  at  $7,500,  and  commissions  were 
claimed  on  this  amount  as  part  of  the  estate  accounted  for. 


214  Coffey's  Probate  Decisions,  Vol.  1. 

From  the  account  and  report  of  the  executors,  it  appeared 
that  a  suit  in  ejectment  had  been  commenced  against  the 
decedent  for  this  property  in  his  lifetime,  and  that  after  trial 
and  appeal  to  the  supreme  court,  subsequent!}'  to  the  death  of 
the  testator,  the  litigation  terminated  in  a  final  judgment 
against  the  estate,  and  the  property  was  surrendered  to  the 
successful  parties. 

The  account  was  settled  in  accordance  with  the  principles 
laid  down  in  the  following  opinion: 

Jarboe  &  Harrison,  attorneys  for  executors. 

H.  A.  Powell  and  A.  P.  Needles,  attorneys  for  widow. 

COFFEY,  J.  1.  The  claimant  of  the  specific  legacy  (the 
saloon)  can  take  only  such  interest  in  the  property  as  the 
testator  had  a  right  or  power  to  dispose  of  by  will.  It 
follows,  therefore,  that  the  proceeds  of  the  sale  of  the  saloon, 
to-wit,  $2,000,  should  be  retired  from  the  account  and  held 
subject  to  distribution,  to  be  disposed  of  by  the  court 
according  to  the  circumstances  at  such  time  existing. 

2.  Commissions  can  only  be  allowed,  according  to  the  statute, 
"upon  the  amount  of  estate  accounted  for"  by  the  executor. 
He  cannot  be  said,  in  the  sense  of  the  statute,  to  have 
accounted  for  estate  to  which  it  has  been  determined  the 
estate  had  no  title,  which  it  appears  never  belonged  to  the 
estate,  and  is  not  returned  or  accounted  for  in  this  account. 


The  Principal  Case  was  Affirmed  by  the  supreme  court  of  Califor- 
nia in  Estate  of  Eicaud,  70  Cal.  69,  11  Pac.  471,  holding  that  an 
executor  cannot  claim  commissions  on  real  estate  involved  in  litiga- 
tion that  ultimately  results  in  a  decision  adverse  to  the  estate.  To 
the  same  effect  is  Estate  of  Delaney,  110  Cal.  563,  42  Pac.  981.  Com- 
missions are  allowable,  as  a  rule,  upon  all  the  property  which  comes 
into  the  possession  of  the  executor  or  administrator  and  for  which 
he  is  accountable,  but  upon  no  other:  Estate  of  Simmons,  43  Cal. 
543;  Estate  of  Isaacs,  30  Cal.  106;  Blackenburg  v.  Jordan,  86  Cal. 
171.   24   Pac.    1061. 


Estate  of  Riddle.  215 


Estate  of  JAMES  L.  RIDDLE,  Deceased. 

[No.    1,209;    decided    April    27,    18S5.] 

Letters  of  Administration — Who  may  Apply  for. — The  person  to 
whom  letters  of  administration  are  issued  must  apply  by  his  own 
petition,  signed  by  himself  or  his  counsel;  a  petition  by  an  heir 
for  the  appointment  of  another  person  is  insuificient,  and  an  order 
appointing  an  administrator  on  such  petition  must  fall.  Such  pe- 
tition  is   in   effect   no   petition,   and   is   not   subject   to   amendment. 

Administrator's  Sale. — The  Court  Should  Require  an  Additional  Bond 
from  the  administrator  upon  ordering  the  sale  of  any  real  property  be- 
longing to  the   estate. 

James  L.  Riddle  died  in  Santa  Clara  county,  in  this  state, 
but  being  a  resident  of  San  Francisco,  and  leaving  estate 
therein,  on  October  8,  1881. 

He  left  a  will,  bearing  date  February  2,  1881,  in  which 
Channing  G.  Fenner  was  named  as  executor. 

On  petition  filed  by  Mr.  Fenner,  on  October  13,  1881,  the 
will  was  admitted  to  probate,  he  appointed  executor  thereof, 
and  letters  testamentary  thereon  issued  to  him,  on  October 
■28,  1881. 

The  executor  died  on  April  22,  1883,  while  still  acting  as 
such. 

On  May  26,  1883,  Grace  L.  Riddle,  a  daughter  of  the 
testator,  filed  a  petition  signed  by  Samuel  H.  Dwinelle,  as 
her  attorney,  and  verified  by  her,  setting  forth  the  facts,  and 
praying  for  the  appointment  of  David  IMcClure  as  adminis- 
trator of  the  estate  with  the  will  annexed. 

On  June  8,  1883,  an  order  was  made  as  prayed  for  by  the 
petitioner  appointing  Mr.  McClure,  and  on  August  13,  1883, 
letters  of  administration  with  the  will  annexed  were  issued 
to  him. 

On  December  17,  1884,  Mr.  McClure  filed  a  petition  for 
an  order  to  sell  certain  real  property  belonging  to  the  estate, 
and  on  January  28,  1885,  an  order  of  sale  was  made  accord- 
ingly. 

A  sale  was  had  pursuant  to  such  order,  and  on  April  8, 
1885,  Mr.  McClure  filed  his  return  and  account  of  sales, 
together  with  a  petition  for  the  confirmation  thereof. 


216  Coffey's  Pkobate  Decisions,  Vol.  1. 

On  April  23,  1885,  a  purchaser  (J.  C.  Johnson)  filed 
written  objections  to  such  confirmation,  on  the  ground  that 
the  sale  was  not  legally  made,  in  this: 

1.  That  no  petition  in  writing  had  ever  been  filed  by 
David  McClure,  signed  by  him  or  by  his  counsel,  for  his 
appointment  as  administrator. 

2.  That  there  was  no  administrator  of  the  estate,  and  that 
the  sale  was  without  authority. 

3.  That  no  bond  was  required  in  the  order  of  sale,  or  ever 
given  by  Mr.  McClure  upon  the  sale,  and  that  his  original 
bond  was  only  $3,500,  while  the  amount  bid  for  the  property 
was  $32,500. 

The  facts  w^ere  correctly  stated  in  the  grounds  of  contest. 
Proceedings  de  novo  were  accordingly  commenced,  and  new 
letters  issued  to  David  McClure  May  29,  1885. 

F.  J.  French,  attorney  for  objecting  purchaser. 

S.  H.  Dwindle,  for  administrator  cum  test.  ann. 

COFFEY,  J.  1.  There  is  no  petition  on  file  here  signed  by 
David  McClure  or  by  his  counsel.  Grace  Riddle 's  application 
that  David  McClure  be  appointed  is  not  sufficient,  as  the 
person  to  whom  letters  are  issued  must  apply  by  his  own 
petition,  signed  by  himself  or  his  counsel:  Code  Civ.  Proc, 
sees.  1371,  1374.  - 

The  order  of  June  8,  1883,  had  no  proper  basis  as  required 
by  the  foregoing  cited  sections,  and  it  must  fall. 

2.  An  additional  bond  should  have  been  provided  for  in 
the  order  of  sale  of  the  real  estate :  Code  Civ.  Proc,  see.  1389. 

The  objections  to  the  confirmation  of  the  sale  are  sustained ; 
they  cannot  now  be  cured  by  amendment ;  there  being  no- 
petition,  there  is  nothing  to  amend. 


Estate  of  Tate.  217 


Estate  of  ROBERT  N.  TATE,  Deceased. 

[No.    5,084;    decided    February    24,    1887.] 

Homestead. — A  Widow  Without  Minor  Children  is  Entitled  to  have 
a  homestead  selected  and  set  apart  by  the  court  out  of  decedent's 
separate   estate,  there   being  no   community  property. 

Homestead. — The  Court  must  Set  Apart  a  Homestead  upon  the  ap- 
plication of  a  widow,  if  none  has  been  selected  in  the  lifetime  of 
the   deceased   spouse.     There   is    no    discretion   in    the   matter. 

The  Right  of  the  Surviving  Spouse  to  a  Homestead  in  separate  es- 
tate of  the  decedent  is  limited  to  an  estate  for  years,  for  life,  or  until 
the  happening  of  some  event,  as  the  marriage  of  the  survivor,  as  may 
be  decreed  by  the  court.  But  the  exercise  of  the  court's  power  is  lim- 
ited by  a  sound  discretion  acting  upon  the  circumstances  of  the 
particular  case;  if  the  survivor  is  young  and  likely  to  remarry,  a 
limitation  for  life  might  be  indiscreet,  otherwise  where  she  is  of  an 
advanced  age. 

Homestead. — The  Purpose  of  the  Statute  in  Giving  a  Homestead 
right  to  the  surviving  spouse  out  of  the  decedent 's  separate  estate 
is  to  provide  a  home  for  the  survivor,  which  no  one  can  touch;  merely 
depriving  the  survivor  of  the  power  of  alienation. 

J.  A.  Hosmer,  for  applicant,  Margaret  E.  Tate. 

W.  C.  Burnett,  opposed. 

COFFEY,  J.  This  is  an  application  by  Margaret  E.  Tate, 
surviving  widow  of  Robert  N.  Tate,  deceased,  for  an  order 
of  court  setting  apart  to  her  absolutely,  as  and  for  a  home- 
stead, a  certain  piece  of  real  property  mentioned  in  the  estate 
of  said  deceased,  situated  on  Post  street,  between  Broderick 
and  Baker,  particularly  described  in  her  petition,  with  the 
dwelling  and  improvements  thereon.  This  property  is 
appraised  at  the  aggregate  value  of  $4,550.  The  petitioner 
claims  the  same  as  community  property,  and  by  virtue  of 
having  a  homestead  declared  thereon  in  the  lifetime  of  said 
Robert  N.  Tate,  which  declaration  of  homestead  compljang 
substantially  with  the  provisions  of  the  Civil  Code  of  this 
state,  was  recorded  on  the  first  day  of  May,  1883,  in  tlie 
recorder's  office  of  the  city  and  county  of  San  Francisco. 
The  application  is  contested  by  a  daughter  of  said  deceased, 
on  the  ground  that  i1   was  not  community  property,  but  the 


218  Coffey's  Probate  Decisions,  Vol.  1. 

separate  property  of  the  deceased,  Robert  N.  Tate,  and  on 
the  further  ground  that  being  separate  property  the  widow, 
having  no  children  by  the  deceased,  is  not  entitled  to  a 
homestead  out  of  his  separate  estate. 

After  a  patient  hearing  of  the  case  in  open  court,  and 
a  careful  reading  and  examination  of  the  able  briefs  pre- 
sented by  the  respective  counsel,  and  of  the  documentary 
evidence  of  a  very  voluminous  character  which  was  submitted 
to  the  court,  I  am  unable  to  come  to  the  conclusion  that  it 
was  community  property.  Upon  the  whole,  after  a  complete 
survey  of  the  situation  of  the  parties,  and  of  the  history  of 
the  accumulations  of  the  deceased,  I  am  of  the  opinion  that 
the  property  was  his  separate  estate.  This  being  the  court's 
deduction  from  the  facts  as  presented  by  the  evidence,  the 
remaining  question  is,  whether  a  widow  without  minor 
children  is  entitled  to  have  a  homestead  set  apart  to  her  out 
of  the  separate  estate  of  her  deceased  husband. 

This  question  has  been  decided  in  this  court  in  the  Estate 
of  Richard  T.  Maxwell,  Deceased,  No.  2,625  [ante,  p.  126], 
in  an  application  in  a  proceeding  wherein  Elena  Maxwell, 
the  widow,  applied  for  an  order  setting  aside  a  homestead 
out  of  the  separate  estate,  the  fact  being  that  there  were 
no  minor  children.  The  counsel  who  participated  in  the 
argument  of  that  case  were  T.  I.  Bergin,  Esq.,  for  the  appli- 
cant; Daniel  Rogers,  Esq.,  for  the  executors  in  opposition; 
and  A.  F.  Morrison,  Esq.,  for  a  legatee,  also  in  opposition. 
Each  and  all  of  these  counsel  argued  the  point  involved  in 
the  application  elaborately^  and  thoroughly  covering  the  entire 
ground,  so  that  the  court  has,  in  addition  to  the  advantage 
of  the  argument  in  this  present  proceeding,  the  benefit  of 
former  argument  and  of  its  own  examination,  and  the  court 
has  seen  no  reason  to  recede  from  its  ruling  in  that  case. 

This  court  must,  upon  proper  application,  set  apart  to  the 
widow  a  homestead,  if  none  has  been  selected  in  the  lifetime 
of  the  deceased.  The  court  has  no  discretion  to  deny  the 
application :  Estate  of  Ballentine,  45  Cal.  699 ;  Estate  of 
McCauley,  50  Cal.  546 ;  Mawson  v.  Mawson,  50  Cal.  539. 

In  the  present  case  the  application  is  founded  upon  a 
statutory   declaration  of  homestead,   which,   operating  upon 


Estate  op  Tate.  219 

(separate)  property  appraised  at  not  more  than  $5,000,  should 
be  the  subject  matter  of  the  court's  decree.  The  power  of 
the  court  is  limited  by  a  sound  discretion  acting  upon  the 
circumstances  of  the  particular  case.  The  fee  passes  to  the 
heirs,  in  this  case  the  petitioner  and  the  applicant,  in  equal 
shares,  with  a  limited  estate  as  a  homestead  in  the  surviving 
widow,  which  would  be  for  years,  for  life,  or  until  the 
happening  of  some  event,  as  the  marriage  of  the  widow.  As 
the  counsel  for  the  applicant  says,  the  purpose  of  the  statute 
undoubtedly  is  to  provide  a  home  for  the  widow  which  no 
one  can  touch,  depriving  her  of  the  power  of  alienation 
merely. 

It  does  not  impair  or  diminish  the^  right  of  the  widow 
that  there  be  no  minor  childen.  The  homestead  is  to  be  set 
apart  to  the  survivor.  It  is  immaterial  that  the  petition  be 
on  behalf  of  the  widow  alone.  It  could  not  here  be  otherwise. 
Her  status  is  that  of  the  "surviving  widow":  Sec.  1465 
(Amdt.  1881)  ;  Estate  of  Lord,  2  W.  C.  R.  131  (Lord  v. 
Lord,  65  Cal.  84,  3  Pac.  96). 

If  the  petitioner  were  young,  and  likely  to  remarry  and 
obtain  a  home  and  support  by  that  act,  a  limitation  for  life 
might  be  indiscreet,  but  considering  her  age — she  is  now 
sixty-two — her  domestic  condition,  and  the  probability  that 
the  condition  will  not  be  modified  by  marriage,  the  court  is 
of  opinion  that  she  is  entitled  to  have  a  homestead  set  apart 
for  life,  and  it  is  so  ordered.  Let  an  order  be  drawn  accord- 
ingly.   

The  Principal  Case  affirms  the  decision  in  Estate  of  Maxwell,  ante, 
p.  126.  The  duty  of  the  court  to  set  apart  a  probate  homestead 
when  a  proper  application  therefor  is  made  is  imperative.  It  has 
no  discretion  to  refuse  the  application,  but  must  grant  it,  for  the 
words  "may  set  apart,"  as  employed  in  the  statute,  are  construed 
"must  set  apart":  Demartin  v.  Demartin,  85  Cal.  71,  24  Pac.  594; 
Tyrrell  v.  Baldwin,  78  Cal.  470,  21  Pac.  116;  Estate  of  Burton,  63 
Cal.  36;  Ballentine's  Estate,  45  Cal.  696;  Estate  of  Walley,  11  Nev. 
260;  Estate  of  Syndegaard,  31  Utah,  490,  88  Pac.  616.  In  case 
there  are  no.  children  the  surviving  spouse,  nevertheless,  has  a  right 
to  a  homestead:  Estate  of  Armstrong,  80  Cal.  71,  22  Pac.  79;  Kearney 
V.  Kearney,  72  Cal.  591,  15  Pac.  769. 


220  Coffey's  Probate  Decisions,  Vol.  1. 

When  a  Probate  Homestead  is  Selected  from  the  separate  estate 
of  the  decedent,  the  court  can  set  it  apart  for  a  limited  period  only. 
The  remainder  in  fee  vests  in  the  heirs,  even  to  the  exclusion  of 
devisees  named  in  the  will.  They  take  a  vested  estate,  which  may  be 
aliened  by  them  voluntarily  or  by  judicial  sale.  Only  the  homestead 
is  exempt;  their  interest  in  the  property  is  subject  to  the  claims  of 
creditors  of  the  decedent,  and  may  be  ordered  sold  to  pay  a  family 
allowance  made  to  the  widow:  Estate  of  Tittel,  139  Cal.  149,  72  Pac. 
909;  McHarry  v.  Stewart  (Cal.),  35  Pae.  141;  Lord  v.  Lord,  65  Cal. 
84,   3   Pac.   96;    Estate  of   Schmidt,   94   Cal.   334,   29  Pac.   714. 


Estate  of  JEAN  PIERRE   RICAIJD,  Deceased    (No.   2). 

[No.  7,754  former  Probate   Court;   decided  February  5,   1887.] 

The  Widow  can  Claim  to  Own  an  Undivided  Half  Only  of  Such 
Property  as  is  distributed  in  kind.  If  she  receive  one-half  of  the 
community  property,  her  right  as  survivor  is  satisfied. 

Executors  are  Entitled  to  have  the  Costs  of  an  Appeal  Allowed  them 
in  their  account,  the  prosecution  of  which  is  necessary  to  obtain  a 
final  determination  of  their  rights  in  relation  to  commissions. 

On  October  20,  1885,  Maria  Ricaud,  widow  of  the  above- 
named  decedent,  died  intestate,  and  A.  P.  Needles  was 
thereafter  appointed  administrator  of  her  estate. 

On  August  2,  1886,  the  administrator  filed  a  petition  for 
distribution  herein. 

Decedent  herein,  by  his  will,  left  the  sum  of  $5,000  to 
his  Avidow,  and  the  sum  of  $2,000  to  her  daughter  by  a 
previous  marriage. 

Before  distribution  herein  this  daughter  also  died,  and 
Selden  S.  Wright  was  appointed  administrator  of  her  estate. 

On  September  8,  1886,  the  executors  tiled  a  supplemental 
account,  containing  a  charge  of  $45.10  for  costs  expended 
on  appeal  (affirmed  against  them,  70  Cal.  69,  11  Pac.  471) 
from  an  order  made  by  the  court,  refusing  to  allow  them 
commissions  on  property  inventoried  as  part  of  the  estate, 
but  afterward  judicially  determined  not  to  belong  to  it  (see 
Estate  of  Ricaud,  ante,  p.  212). 


Estate  of  Ricaud.  221 

This  item  was  objected  to  by  the  administrator  of  the 
widow,  as  arising  out  of  an  appeal  taken  by  the  executors 
for  their  exclusive  benefit. 

The  estate  left  by  decedent  was  community  property. 
The  executors  had,  under  order  of  court,  sold  a  saloon  for 
$2,000,  which  had  been  specifically  bequeathed  by  the  tes- 
tator to  his  brother,  Michael  Ricaud,  and  the  executors  had 
paid  said  legatee  the  full  proceeds. 

The  administrator  of  the  widow  now  claimed  that  as  this 
saloon  was  community  property  the  testator  could  only  be- 
queath one-half  of  it,  and  that  the  legatee  was  only  entitled 
to  one-half  the  proceeds. 

The  contention  of  the  executors  was  that  the  widow  had 
already  received  more  than  one-half  of  the  estate  in  money 
on  partial  distribution,  and  that  the  bequest  by  the  hus- 
band of  a  specific  piece  of  his  estate  does  not  make  the 
legatee  a  cotenant  with  the  widow;  that  "the  widow  has  the 
right  to  claim  any  other  portion  equal  in  value  to  that  which 
the  husband  has  given,  but  has  not  the  right  to  claim  the 
half  of  the  specific  piece,  so  long  as  she  receives  the  half  of 
the  entire  estate." 

They  further  maintained  that  even  if,  as  claimed  by 
counsel  for  contestants,  the  widow  is  entitled  to  an  un- 
divided one-half  of  all  the  community  property,  this  is  only 
the  rule  when  the  property  is  distributed  in  kind,  and  that 
it  cannot  be  the  rule  when  the  property,  or  the  bulk  thereof, 
is  converted  into  money,  and  the  widow  receives,  in  money, 
one-half  of  the  whole  estate  as  its  money  value. 

"If  the  entire  estate  is  converted  into  money,  all  that  the 
widow  can  receive  is  one-half  of  the  money.  She  cannot, 
after  having  received  that  one-half,  claim  that  she  is  en- 
titled to  a  portion  of  the  very  estate  or  its  proceeds,  out  of 
which  the  money  received  by  her  was  realized." 

Jarboe  &  Harrison,  for  executors. 

H.  A.  Powell  and  A.  P.  Needles,  for  administrator  of 
widow. 

Selden  S.  and  Geo.  T.'  Wright,  for  administrator  of  wid- 
ow's daughter. 


222  Coffey's  Probate  Decisions,  Vol.  1. 

COFFEY,  J.  The  final  brief  in  this  matter  was  filed 
November  29,  1886,  which  should  be  considered  the  date  of 
actual  submission  of  the  controversy. 

1.  The  theory  of  the  contestants'  counsel  does  not  fit  the 
facts  in  this  case.  If  I  correctly  apprehend  the  respective 
arguments  of  counsel,  the  position  assumed  by  the  executors 
is  the  true  legal  one.  "The  widow  can  claim  to  own  an 
undivided  half  only  of  such  property  as  is  distributed  in 
kind,  and  then  only  after  distribution."  If  she  have  re- 
ceived one-half  of  the  community  property  her  right  as  sur- 
vivor is  satisfied. 

Exception  and  objection  denied  and  overruled. 

2.  The  prosecution  of  the  appeal  seems  to  have  been 
necessary  to  obtain  a  final  judicial  determination  of  the 
rights  and  duties  of  the  executors. 

Exception  and  objection  denied  and  overruled.  Account 
allowed. 


Estate  of  HANNAH  G.  INGRAM,  Deceased. 
[No.  4,993;  decided  December  13,  1886.] 

Will. — Every  Person  Over  the  Age  of  Eighteen  Years,  of  Sound 
Mind,  may,  by  last  will,  dispose  of  all  his  estate  remaining  after 
payment  of  his  debts. 

Will. — A  Person  is  of  Sound  and  Disposing  Mind  who  is  in  the  pos- 
session of  all  the  natural  mental  faculties  of  man,  free  from  de- 
lusion, and  capable  of  rationally  thinking,  reasoning,  acting  and  de- 
termining for  himself.  A  sound  mind  is  one  wholly  free  from  de- 
lusion. Weak  minds  differ  from  strong  minds  only  in  the  extent 
and  power  of  their  faculties;  unless  they  betray  symptoms  of  de- 
lusion  their  soundness   cannot  be   questioned. 

Will — Delusion. — It  is  not  the  Strength  of  a  Mind  which  deter- 
mines its  freedom  from  delusion;   it  is  its  soundness. 

Will — Delusion  of  Mind  is  a  Species  of  Insanity. — The  main  char- 
acter of  insanity,  in  a  legal  view,  is  the  existence  of  a  delusion. 

Will. — A  Person  is  the  Victim  of  Delusion  when  he  pertinaciously 
believes  something  to  exist  which  does  not.  Belief  of  things  which 
are  entirely  without  foundation  in  fact  is  insane  delusion;  that  is, 
where  things  exist  only  in  the  imagination  of  a  person,  and  the  non- 


Estate  of  Ingram.  223 

existence  of  which  neither  argument  nor  proof  can  establish  in  his 
mind. 

Will. — If  a  Person  is  Under  a  Delusion,  though  there  is  but  Partial 
Insanity,  yet  if  it  is  in  relation  to  the  act  in  question,  it  will  defeat 
a  will  which  is  the  direct  offspring  of  that  partial  insanity. 

Will. — Belief  Based  on  Evidence,  However  Slight,  is  not  Delusion; 
delusion  rests  upon  no  evidence  whatever;  it  is  based  on  mere  sur- 
mise. The  burden  of  proof  is  upon  the  party  alleging  insanity  or 
insane  delusion. 

Will. — A  Will  Produced  by  Undue  Influence  cannot  stand. 

Will. — Undue  Influence  is  any  Kind  of  Influence,  either  through 
fear,  coercion,  or  importunity,  by  which  the  testator  is  prevented 
from  expressing  his  true  mind.  It  must  be  an  influence  adequate  to 
control  the  free  agency  of  the  testator.  If  a  weak-minded  person 
is  importuned  to  such  an  extent  that  he  has  not  sufficient  strength 
of  mind  to  determine  for  himself,  so  that  the  proposed  script  ex- 
presses the  views  and  wishes  of  the  person  importuning,  rather  than 
his  own,  and  is  not  his  free  and  unconstrained  act,  it  is  not  his  will. 
Undue  influence,  or  supremacy  of  one  mind  over  another,  is  such  as 
prevents  that  other  from  acting  according  to  his  own  wish  or  judg- 
ment. 

Will — Undue  Influence. — Neither  Advice,  Argument,  nor  Persuasion 
will  vitiate  a  will  made  freely  and  from  conviction,  though  such 
will  might  not  have  been  made  but  for  such  advice  and  persuasion. 
Neither  does  undue  influence  arise  from  the  influence  of  gratitude, 
affection  or  esteem. 

Will. — If  the  Testator  has  Sufficient  Memory  and  Intelligence  fairly 
and  rationally  to  comprehend  the  effect  of  what  he  is  doing,  to  ap- 
preciate his  relations  to  the  natural  objects  of  his  bounty,  and  un- 
derstand the  character  and  effect  of  the  provisions  of  his  will;  if  he 
has  a  reasonable  understanding  of  the  nature  of  the  property  he 
wishes  to  dispose  of,  and  of  the  persons  to  whom  and  the  manner  in 
which  he  wishes  to  distribute  it,  and  so  express  himself,  his  will  is 
good.     It  is  not  necessary  that  he  should  act  without  prompting. 

Will. — Undue  Influence  may  be  Defined  as  that  which  compels  the 
testator  to  do  that  which  is  against  his  will,  through  fear  or  a  de- 
sire of  peace,  or  some  feeling  which  he  is  unable  to  resist,  and  but 
for  which  the  will  would  not  be  made  as  it  is,  although  the  testator 
may  know  what  he  is  about  when  he  makes  the  will,  and  may  have 
sufficient  capacity  to  make  it. 

Will. — What  would  be  an  Undue  Influence  on  One  Man  might  be 
no  influence  at  all  on  another.  This  depends  upon  the  capacity,  in 
other  respects,  of  the  testator. 

WiU. — Undue  Influence  must  be  an  Influence  Exercised  in  Relation 
to  the  will  itself,  and  not  in  relation  to  other  matters  or  transactions. 


224  Coffey's  Probate  Decisions,  Vol.  1. 

But  it  need  not  be  shown  to  have  been  actually  exercised  at  the  point 
of  time  that  the  will  was  executed. 

Will. — Undue  Influence  cannot  be  Presumed,  but  must  be  Proved, 
and  the  burden  of  proving  it  lies  on  the  party  alleging  it.  Such 
evidence  must  often  be  indirect  and  circumstantial,  for  undue  in- 
fluence can  rarely  be  proved  by  direct  and  positive  testimony.  The 
circumstances  to  be  considered,  stated, 

Will — Insane  Delusion — Undue  Influence. — The  Evidence  in  this 
Case  reviewed  at  length  and  the  conclusion  reached,  that  the  testa- 
trix was  the  victim  of  an  insane  delusion,  of  which  the  instrument 
propounded  was  the  offspring,  and  that  the  testatrix  was  unduly  in- 
fluenced to  make  the  will  in  favor  of  proponent. 

Geo.  H.  Perry  and  W.  W.  Bishop,  for  contestant,  John 
W.  Ingram,  husband  of  testatrix. 

J.  M.  Seawell,  for  contestants,  Samuel  F.  Clough  and 
others,  nephews  and  nieces  of  testatrix. 

Selden  S.  Wright  and  E.  Thompson,  for  proponent,  Jun- 
ius L.  Hatch. 

COFFEY,  J.  On  February  6,  1886,  a  petition  was  filed 
by  Junius  L.  Hatch  in  this  court,  praying  for  the  admission 
to  probate  of  a  certain  document  purporting  to  be  the  will 
of  Hannah  G.  Ingram,  deceased,  which  petition  set  forth 
that  Hannah  G.  Ingram  died  on  the  1st  of  February,  1886, 
in  this  city  and  county,  where  she  was  at  that  date  a  resi- 
dent, leaving  a  last  will  and  testament  in  the  possession  of 
Junius  L.  Hatch,  who  was  named  therein  as  executor  and 
principal  devisee  and  legatee,  the  others  being  Samuel  F. 
Clough,  James  A.  Clough,  Olympia  Wilson,  Lillie  D.  Hatch 
and  John  W.  Ingram.  That  the  next  of  kin  of  the  testatrix 
and  heirs  at  law  were  said  John  W.  Ingram,  the  husband  of 
decedent,  residing  at  San  Francisco,  Samuel  F.  Clough, 
James  A.  Clough,  nephews,  all  residing  in  this  state. 

That  at  the  time  said  will  was  executed,  February  13, 
1885,  the  testatrix  was  of  the  age  of  fifty-two,  and  other- 
wise competent  to  make  a  will.  The  will  is  in  the  hand- 
writing of  the  proponent,  signed  by  the  testatrix,  and  attested 
by  the  subscribing  witnesses,  according  to  the  statute  in  such 
case  made  and  provided,  and  the  petitioner  further  prays 
that  letters  testamentary  be  issued  to  him. 


Estate  of  Ingram.  225 

The  will  provides  (1)  that  all  the  just  debts  and  funeral 
expenses  be  paid;  (2)  the  testatrix  gives  to  her  husband. 
John  W.  Ingram,  the  sum  of  $5;  (3)  to  her  nephew,  Samuel 
F.  Clough,  $5;  (4)  to  her  nephew,  James  A.  Clough,  $5; 
(5)  to  Mrs.  Olympia  Wilson,  of  Farback,  Germany,  form- 
erly France,  the  sum  of  $10  per  month,  to  be  paid  monthly 
out  of  her  estate  by  her  executor  during  the  legatee's  nat- 
ural life;  (6)  she  gives  to  Lillie  D.  Hatch,  the  daughter  of 
said  J.  L.  Hatch,  executor,  all  her  personal  property,  con- 
sisting of  clothing,  books,  pictures,  jewelry,  etc.;  (7)  she 
directs  that  an  appropriate  monument  be  erected  by  her 
executor  to  her  first  husband  John  Dominic  Wilson,  and 
herself,  in  her  lot  in  the  Odd  Fellows'  Cemetery,  of  such 
cost  and  character  as  her  executor  may  approve,  to  be  paid 
for  out  of  her  estate;  (8)  she  gives,  devises  and  bequeathes 
to  Junius  L.  Hatch,  journalist,  now  of  San  Francisco,  her 
house  and  lot  No.  1724  Hyde  street,  including  the  cottage 
in  the  rear,  No.  1235  Vallejo  street,  and  she  also  makes  the 
.said  Junius  L.  Hatch  her  residuary  legatee,  and  finally  nom- 
inates the  said  Junius  L.  Hatch  the  executor  of  her  will 
without  bonds. 

The  will  purports  to  have  been  executed  on  the  13th  of 
February,  1885,  in  the  presence  of  Amanda  Arnold  and 
Algernon  Hopkins. 

On  February  16,  1886,  J.  W.  Ingram  filed  an  opposition 
to  the  admission  of  this  instrument  to  probate,  on  the 
grounds,  first,  that  he  was  the  husband  of  the  deceased  at 
the  time  of  her  death,  having  been  married  to  her  on  the 
thirtieth  day  of  July,  1884;  that  at  the  time  of  her  death 
she  possessed  real  estate  and  personal  property  of  about 
$15,000  in  value,  and  that  at  the  time  the  said  Hannah  G. 
Ingram  executed  the  said  will  she  was  not  of  sound  and 
disposing  mind,  and  was  not  competent  to  execute  the  said 
will  by  reason  of  her  unsoundness  of  mind,  and  that,  at 
that  time,  her  signature  was  obtained  by  means  of  threats 
made  by  one  Hatch,  the  person  named  in  said  instrument  as 
the  residuary  legatee;  further,  that  in  order  to  obtain  said 
signature,  said  Hatch  falsely  and  fraudulently,  and  with 
intent  to  deceive  said  Hannah  G.  Ingram,  and  to  prejudice 
^nd  defraud  the  opponent,  represented  to  said  Hannah  G. 

Prob.  Dec,  Vol.  I — 15 


226  Coffey's  Probate  Decisions,  Vol.  1. 

Ingram  that  he,  the  opponent  and  husband  of  decedent,  was 
unfaithful  to  his  marriage  vows,  and  that  he  was  an  idle  and 
dissolute  person;  and  the  petitioner  further  alleged  that  the 
said  Hannah  G.  Ingram  believed  the  said  false  and  fraudu- 
lent representations  of  said  Hatch  to  be  true;  and  further, 
the  opponent  alleged  that  from  the  date  of  the  execution  of 
the  said  purported  will  up  to  the  time  of  the  death  of  the 
said  Hannah  G.  Ingram,  the  said  Hatch  falsely  and  fraudu- 
lently and  with  intent  to  unduly  influence  the  mind  of  said 
Hannah  G.  Ingram,  and  with  intent  to  weaken  and  destroy 
the  love  and  affection  borne  by  the  said  Hannah  G.  Ingram 
toward  the  opponent,  her  husband,  continued  to  represent 
and  declare  that  the  opponent  was  associating  with  lewd 
women  and  was  unfaithful  and  untrustworthy,  and  was  not 
a  fit  and  proper  person  to  associate  and  live  with  said  dece- 
dent, and  was  not  a  fit  and  proper  person  to  whom  the  prop- 
erty and  estate  of  said  decedent  should  be  bequeathed;  and 
further,  opponent  alleged  that  said  deceased  was  influenced 
by  false  and  fraudulent  representations  of  said  Hatch,  and. 
believing  them  to  be  true,  forced  the  opponent,  her  hus- 
band, to  leave  said  deceased,  and  the  said  Hatch  caused  said 
deceased  to  remain  away  from  opponent,  her  husband,  and 
to  conceal  her  whereabouts  from  opponent,  her  husband,  and 
at  the  time  of  the  death  of  the  said  Hannah  G.  Ingram,  and 
for  a  long  time  prior  thereto,  the  whereabouts  of  said  de- 
ceased w^ere  unknown  to  opponent,  her  husband,  and  said 
deceased  so  conducted  herself,  owing  to  the  representations 
and  influence  of  said  Hatch,  as  hereinbefore  set  forth.  The 
opponent  therefore  prayed  that  the  probate  of  the  purported 
will  be  denied,  and  that  he  be  appointed  administrator  of 
the  estate  of  said  Hannah  G.  Ingram. 

On  February  25,  1886,  Samuel  F.  Clough,  James  A. 
Clough,  Lulu  B_  Clough  and  Albatena  M.  Weaver  filed  an 
opposition  on  their  own  behalf,  alleging  that  they  are  the 
next  of  kin  and  heirs  at  law  of  Hannah  G.  Ingram,  de- 
ceased, being  her  nephews  and  nieces,  and  alleging  as 
grounds  of  opposition  all  of  the  statutory  causes,  the  issue 
of  undue  influence  being  tendered  in  these  words : 

"That  said  alleged  will  and  testament  was  procured  to  be 
made  by  said  Junius  L.  Hatch  by  undue  influence  exerted 


Estate  of  Ingram.  227 

by  him  upon  said  Hannah  G.  Ingram,  as  follows,  to  wit : 
'That  said  Hannah  G.  Ingram,  prior  to  and  at  the  time  of 
making  said  alleged  will  and  testament,  was  of  unsound 
mind ;  that  prior  to  and  at  the  time  of  the  making  of  said 
alleged  will  and  testament,  the  said  Junius  L.  Hatch,  with 
the  sole  intent  and  design  of  procuring  said  Hannah  G.  In- 
gram to  make  said  alleged  will  and  testament,  had  professed 
great  friendship  for  said  Hannah  G.  Ingram,  and  by  divers 
acts  and  practices  unknown  to  these  contestants  acquired 
an  ascendency,  influence  and  control  over  said  Hannah  G. 
Ingram,  and  over  her  mind  and  will ;  that  prior  to  and  at 
the  time  of  making  said  alleged  will  and  testament,  said 
Junius  L.  Hatch  importuned  her  to  make  and  execute  the 
same,  and  himself  wrote  the  same  and  presented  the  same  to 
her  and  urged  and  importuned  her  to  sign  the  same;  and 
that  owing  to  her  said  condition  of  mind  and  the  influence 
and  control  which  he,  said  Junius  L.  Hatch,  had  over  her, 
she,  the  said  Hannah  G.  Ingram,  was  unable  to  resist  the 
said  importunity  of  said  Junius  L.  Hatch,  and  signed  said 
alleged  will  and  instrument.'  " 

To  both  and  to  each  of  these  contests  or  oppositions 
answer  was  made  by  Junius  L.  Hatch,  the  proponent  of 
the  will,  specifically  denying  all  the  allegations  of  the  re- 
spective oppositions  or  contests,  and  the  issues  thus  joined 
came  up  for  trial  before  the  court,  a  jury  having  been  ex- 
pressly waived  in  open  court,  on  September  29,  1886.  and 
it  was  consented  in  open  court  that  the  two  contests  be  con- 
solidated for  the  purposes  of  the  trial. 

The  issues  to  which  response  must  be  made  are  reduced 
by  the  evidence  to  two:  insanity  and  undue  influence. 

(1)  Was  the  testatrix  the  victim  of  an  insane  delusion, 
and  was  this  will  the  product  of  that  delusion? 

(2)  Was  the  testatrix  unduly  influenced  by  Dr.  Hatch 
to  make  this  will? 

As  to  the  first  of  these  questions — Was  there  an  insane 
delusion,  and  was  this  will  the  product  of  that  delusion? — 
we  must  first  settle  what  constitutes  an  insane  delusion  ac- 
cording to  the  law,  and  the  decisions  of  the  courts  declaring 
the  law;  and  this  is  included  within  the  general  question  as 
to  mental  competency. 


228  Coffey's  Probate  Decisions,  Vol.  1. 

The  law  of  our  state  provides  that  every  person  over  the 
age  of  eighteen  years,  of  sound  mind,  may,  by  last  will,  dis- 
pose of  all  Ms  estate,  real  and  personal,  chargeable,  however, 
with  the  payment  of  all  his  debts:  Civ.  Code,  sec.  1270. 

A  person  is  of  sound  and  disposing  mind  who  is  in  the 
possession  of  all  the  natural  mental  faculties   of  man,   free 
from  delusion,  and  capable  of  rationally  thinking,  reasoning, 
acting  and  determining  for  himself.     A  sound  mind  is  one 
wholly  free  from  delusion.     Weak  minds  differ  from  strong 
minds  only  in  the  extent  and  power  of  their  faculties;  un- 
less they  betray  symptoms  of  delusion  their  soundness  can- 
not be  questioned.     It  is  not  the  strength  of  a  mind  which 
determines   its   freedom   from    delusion,   it   is   its   soundness. 
Thus,  it  is  often  said  that  such  or  such  a  distinguished  man 
has  a  sound  mind;  yet  a  man  in  the  plainer  walks  of  life, 
of  faculties  of  less  extent  or  power,  may  be  equally  sound. 
The  latter  is  of  sound  mind  equally  with  the  former,  if  free 
from  delusions.     Delusion  of  mind  is  to  an  extent  insanity 
The  main  character  of  insanity,  in  a  legal  view,  is  said  to 
be  the  existence  of  a  delusion,  that  is,  that  a  person  should 
pertinaciously   believe   something   to    exist   which    does   not 
exist,  and  that  he  should  act  upon  that  belief.     Belief  of 
things  which  are  entirely  without  foundation  in  fact,  and 
which  no  sane  person  would  believe,  is  insane  delusion;  that 
is,  when  a  person  believes  things  to  exist  only,  or  at  least 
in   that   degree   only,    in   his   own   imagination,    and   of   the 
nonexistence  of  which  neither  argument  nor  proof  can  con- 
vince him,  that  person  is  of  unsound  mind.     If  he  be  under 
a  delusion,  though  there  be  but  partial  insanity,  yet  if  it  be 
in  relation  to  the  act  in  question,  it  will  defeat  a  will  which 
is  the   direct   offspring   of   that   partial   insanity.     Thus,    in 
one  case,  where  the  testator  conceived  the  groundless  delu- 
sion that  his  nephew  had  conspired  to  effect  his  death,  the 
will  was  set  aside.     On  the  other  hand,  in  Clapp  v.  Fuller- 
ton,  34  N.  Y.  190,  90  Am.  Dec.  681,  it  was  held  that  the 
will  could  not  be  rejected  on  the  ground  that  the  testator 
entertained  the  idea  that  one  of  his  daughters  was  illegiti- 
mate, if  this  belief  was  not  founded  on  insane  delusion,  but 
upon  slight  and  insufficient  evidence  acting  upon  a  jealous 
and   suspicious   mind.     Belief   based    on    evidence,    however 


Estate  of  Ingram.  229 

slight,  is  not  delusion.  One  person,  from  extreme  caution 
or  from  a  naturally  doubtful  frame  of  mind,  will  require 
proof  before  acting,  amounting,  perhaps,  to  demonstration; 
while  another,  of  different  faculties  but  of  equally  sound 
mind,  will  act  upon  very  slight  evidence.  Delusion  rests 
upon  no  evidence  whatever;  it  is  based  on  mere  surmise: 
Estate  of  Tittel,  Myr.  12 ;  Estate  of  Black,  Myr.  24. 

To  apply  these  general  principles  to  the  case  in  hand: 
If  Mrs.  Ingram  believed  that  her  husband,  John  W.  Ingram, 
was  unfaithful  to  her,  and  if  the  belief  of  his  infidelity  was 
entirely  without  foundation  in  fact ;  if  the  belief  was  the 
product  of  her  own  imagination ;  and  if  the  paper  here  pro- 
pounded as  her  will  was  made  under  such  belief;  and  if  she 
was  influenced  and  controlled  by  such  belief  in  making  it, 
then  she  was  not  of  sound  mind,  but  was  under  a  delusion, 
and  the  paper,  so  far,  is  not  her  will. 

Did  any  fact  exist  which  could  cause  a  sane  mind  to  be- 
lieve that  such  was  the  case?  If  any  fact  did  so  exist, 
she  was  not  laboring  under  a  delusion  regarding  the  same. 
If  any  fact  existed,  and  was  known  to  her,  upon  which  she 
could  base  such  a  suspicion  of  her  husband's  fidelity,  she 
was  not  laboring  under  a  delusion  respecting  the  same.  A 
person  may  act  upon  weak  testimony,  yet  be  under  no  de- 
lusion. If  the  court  finds  that  no  fact  existed  upon  which 
a  sane  mind  would  form  such  a  belief  as  is  imputed  to  the 
testatrix,  then  she  was  under  an  insane  delusion,  and  the 
court  is  bound  to  find  that  this  is  not  a  valid  will. 

John  W.  Ingram,  one  of  the  contestants,  when  about 
twenty-six  years  of  age,  intermarried  with  the  widow  Wil- 
son, July  30,  1884,  she  being  about  forty  years  his  senior, 
or  say  sixty-five  years  of  age.  He  had  been  brought  up 
from  about  his  tenth  year  by  herself  and  her  former  hus- 
band, John  D.  Wilson,  who  had  practically,  but  not  statu- 
torily, adopted  him  as  their  son.  She  had  a  considerable 
property,  and  it  is  in  testimony  that  one  reason  why  she 
married  her  adopted  son  was  to  secure  to  him  firmly  his 
rights  of  property.  She  appears  to  have  had  more  than 
a  mother's  fondness  for  him,  since  it  appears  in  evidence 
she  was  intensely  jealous  of  him,  a  jealousy  apparently  more 
conjugal   than   maternal.     Why   she   should    have   been    ap- 


230  Coffey's  Probate  Decisions,  Vol.  1. 

prehensive  that  he  would  attract  more  than  ordinary  in- 
terest, or  inspire  unusual  affection  in  the  heart  of  other 
women,  is  not  clear  to  the  mind  of  the  court,  which  must 
depend  upon  normal  conditions  for  its  conclusions.  Prior 
to  Ingram's  marriage  to  the  deceased,  it  appears  he  had 
suffered  a  brief  experience  of  like  character  with  a  lady, 
from  whom,  after  six  weeks  of  cohabitation,  he  had  been 
divorced  upon  his  own  application  upon  the  ground  of  ex- 
treme cruelty. 

Ingram  was  a  plumber  by  trade,  and  seems  to  have  pur- 
sued his  calling  with  reasonable  diligence;  in  his  work  it 
appears  he  was  often  embarrassed  by  the  attentions  of  his 
wife,  the  testatrix,  who  followed  him  about,  and  by  her  un- 
usual conduct  annoyed  his  fellow-workmen ;  one  of  his  em- . 
ployers  testified  that  he  was  a  nice,  quiet  man,  but  the  em- 
ployer was  compelled  to  discharge  him  several  times,  be- 
cause Mrs.  Ingram  was  in  the  habit  of  coming  around  and 
bothering  her  husband  on  account  of  a  "Spanish  woman," 
whom  she  imagined  to  be  after  him.  Upon  this  subject  of 
this  "Spanish  woman"  the  case  as  to  insane  delusion  rests. 
All  the  witnesses  testify  that,  while  upon  the  other  subjects 
she  acted  in  a  fairly  rational  manner,  she  labored  under 
hallucinations,  fixed  false  ideas  (testimony  of  Ilollwege  and 
others)  as  to  the  "Spanish  woman";  she  never  tired  of  this 
topic;  and  the  almost  uniform  testimony  is  that  she  was 
not  in  her  right  mind  on  the  question  of  the  "Spanish  wo- 
man." 

See  testimony  of  P.  R.  O'Brien,  James  Watson,  Andrew 
T.  Field,  J.  H.  Williams,  Thomas  O'Brien,  Mrs.  Stangen- 
berger.  Lottie  M.  Golden,  INIrs.  Letitia  Ralph,  Patrick  Lee, 
Charles  C.  Levy,  W.  H.  Allen,  George  Dixon,  Joseph  Buck- 
ley, Andrew  McKinnon,  Officer  T.  A.  McKinnon,  E.  M. 
Gallagher,  William  G.  Thomas,  John  Evans,  Benjamin 
Davis,  Guillaume  Abadie,  Mrs.  Ida  Carpenter,  John  W, 
Shields,  George  H.  Perry,  Dr.  S.  S.  Stambaugh,  Miss  Fran- 
ces Pratt  (the  "Spanish  woman"),  and  her  mother,  Mrs. 
Josephine  Pratt. 

The  burden  of  proof  is  upon  the  party  alleging  insanity 
or  insane  delusion.  The  reports  have  rarely  furnished  a 
case  in  which  the  weight  of  evidence  is  stronger  in  favor 


Estate  of  IngRxVM.  231 

of  such  an  allegation  than  the  one  here  presented.  That 
the  testatrix  was  under  an  insane  delusion  with  regard  to 
the  "Spanish  woman,"  which  delusion  controlled  her  in 
disposing  of  her  property,  and  that  that  delusion  was  fos- 
tered by  Dr.  Hatch,  I  have  no  manner  of  doubt.  It  seems 
to  me  impossible  to  go  through  the  evidence,  upon  a  re- 
examination, without  reaffirming  the  conviction  that  I  sug- 
gested when  the  case  was  submitted,  that  the  testatrix  was 
the  victim  of  an  insane  delusion,  of  which  the  instrument 
here  propounded  was  the  offspring.  There  is  not  an  atom 
of  evidence  that  her  husband  was  unfaithful,  not  an  iota  of 
testimony  that  the  young  woman,  Miss  Pratt,  the  "Span- 
ish woman,"  was  the  cause  of  the  jealousy  of  the  decedent, 
and,  as  all  the  counsel  conceded  at  the  trial,  there  is  the 
highest  degree  of  improbability  that  she  should  have  been 
the  active  cause  of  provoking  the  jealousy  with  regard  to 
Ingram ;  moreover  it  does  appear,  without  contradiction, 
that  she  was  a  total  stranger  to  all  the  parties  concerned, 
and  an  innocent  victim  of  a  most  extraordinary  persecu- 
tion. The  deceased  testatrix  had  absolutely  nothing  upon 
which  to  base  her  suspicion  of  the  infidelity  of  her  husband, 
and  of  the  complicity  of  Miss  Pratt,  and  the  testimony  of 
I\Irs.  Humphreys  weighs  not  even  a  feather  in  the  scale 
against  the  overwhelming  evidence  to  the  contrary;  there 
is  not,  as  counsel  for  proponent  insists,  in  favor  of  this 
theory,  even  one  of  those 

"Trifles  ligbt  as  air,  which 
Are,  to  the  jealous,  confirmation  strong 
As  proofs  of  holy  writ." 

— Othello,  Act  III,  Scene  3. 

There  was  every  reason,  in  the  natural  order,  why  In- 
gram should  have  been  the  object  of  her  bounty.  The 
testimony  of  most  of  the  witnesses,  disinterested  and  un- 
impeached,  was  to  the  effect  that  she  had  contracted  this 
otherwise  incongruous  and  unnatural  alliance  in  order  to 
secure  to  her  and  her  deceased  husband's  adopted  child 
"hi.s  rights  of  property."  (See  testimony,  uncontradicted, 
of  witnesses  for  contestant.)  Amid  all  her  vagaries  and 
eccentricities  there  stood  out,  in  clear  lines,  affection  for 
this  young  man;  nothing  but  the  wholly  imaginary  "Span- 


232  Coffey's  Probate  Decisions,  Vol.  1. 

ish  woman"  interfered  with  her  intention  to  make  him  the 
beneficiary  of  her  bounty,  and  it  would  be  a  "judicial  out- 
rage," as  intimated  by  one  of  the  counsel,  to  defeat  that 
marital  purpose.  The  "Spanish  woman"  was  a  myth,  a 
sheer  delusion,  a  creature  of  diseased  imagination,  now,  in 
the  light  of  legal  evidence,  entirely  dissipated. 

2.  Was  the  testatrix  unduly  influenced  to  make  this  will? 

A  will  produced  by  undue  influence  cannot  stand.  Un- 
due influence  is  any  kind  of  influence,  either  through  fear, 
coercion  or  importunity,  by  which  the  testator  is  prevented 
from  expressing  his  true  mind.  A  question  of  this  kind  is 
not  likely  to  arise,  except  in  regard  to  persons  of  naturally 
weak,  mind  or  facile  disposition,  or  where  such  has  become 
their  condition,  either  from  age  or  disease.  It  must,  of 
course,  be  an  influence  adequate  to  control  the  free  agency 
of  a  testator.  It  is  very  properly  said:  "A  testator  should 
enjoy  full  liberty  and  freedom  in  making  his  will,  and  pos- 
sess the  power  to  withstand  all  contradiction  and  control. 
That  degree,  therefore,  of  importunity  or  undue  influence 
which  deprives  the  testator  of  his  free  agency,  which  is  such 
as  he  is  too  weak  to  resist,  and  will  render  the  instrument 
not  his  free  and  unconstrained  act,  is  sufficient  to  invalidate 
it." 

I  have  a  legal  right  to  ask  of  a  person  making  his  will, 
that  he  direct  his  property  to  go  in  any  given  channel,  I 
may  even  urge  and  importune  him,  and  if  he  has  sufficient 
strength  of  mind  to  determine  for  himself  the  will  is  good^ 
even  though  he  adopt  my  suggestion ;  but  if  I  ask  or  im- 
portune a  weak  mind,  one  exhausted  by  disease  or  otherwise, 
to  such  an  extent  that  he  do  not  have  sufficient  strength  of 
mind  to  determine  for  himself,  so  that  the  proposed  script 
expresses  my  views  and  wishes  rather  than  his  own,  it  is 
not  his  will.  If  the  testatrix  had  sufficient  memory  and  in- 
telligence to  fairly  and  rationally  comprehend  the  effect  of 
whp,t  she  was  doing,  to  appreciate  her  relations  to  the  nat- 
ural objects  of  her  bounty,  and  understand  the  character 
and  effect  of  the  provisions  of  the  will;  if  she  had  a  reason- 
able understanding  of  the  nature  of  the  property  she  wished 
to  dispose  of,  and  of  the  persons  to  whom,  and  the  manner  in 
which  she  wished  to  distribute  it,  and  did  so  express  her- 


Estate  of  Ingram.  233 

self,  it  is  good.  It  is  not  necessary  that  she  should  have 
acted  without  prompting.  Importunity  or  influence,  to  have 
the  effect  of  invalidating  a  will,  must  be  in  such  a  degree 
as  to  take  away  her  free  agency. 

The  question  here  is,  whether  at  the  time  of  executing  this 
will  Hannah  G.  Ingram  was  free  to  do  as  she  pleased,  or 
whether  she  was  then  so  far  under  the  influence  of  Junius 
L.  Hatch  that  the  will  is  not  the  act  and  will  of  Hannah  G. 
Ingram,  but  is  the  will  of  Junius  L.  Hatch. 

Undue  influence  has  been  defined  by  our  code  (Civ.  Code, 
1575)   to  consist: 

1.  In  the  use,  by  one  in  whom  confidence  is  reposed  by 
another,  or  who  holds  a  real  or  apparent  authority  over  him, 
of  such  confidence  or  authority  for  the  purpose  of  obtaining 
an  unfair  advantage  over  him. 

2.  In  taking  an  unfair  advantage  of  another's  weakness 
of  mind;  or, 

3.  In  taking  a  grossly  oppressive  and  unfair  advantage 
of  another's  necessities  or  distress. 

On  this  point  evidence  must  often  be  indirect  and  circum- 
stantial. Naturally,  persons  who  intend  to  control  the  actions 
of  another,  especially  in  the  matter  of  the  execution  of  wills, 
do  not  proclaim  that  intent.  Very  seldom  does  it  occur 
that  a  direct  act  of  influence  is  patent.  The  existence  of 
influence  must  generally  be  gathered  from  circumstances, 
such  as  whether  the  testatrix  had  formerly  intended  a  differ- 
ent disposition  of  her  property ;  whether  she  was  surrounded 
by  those  having  an  object  to  accomplish  to  the  exclusion  of 
others;  whether  she  was  of  such  weak  mind  as  to  be  subject 
to  influence;  whether  the  paper  offered  as  a  will  is  such  a 
paper  as  would  probably  be  urged  upon  her  by  the  persons 
surrounding  her;  w^hether  they  are  benefited  thereby  to  the 
exclusion  of  formerly  intended  beneficiaries. 

Undue  influence  can  rarely  be  proved  by  direct  and  posi- 
tive testimony.  It  may  be  inferred  from  the  nature  of  the 
transaction,  from  the  true  state  of  the  affections  of  the  tes- 
tatrix, from  groundless  suspicions  against  members  of  her 
family,  if  any  such  have  been  proved,  and  from  all  the  sur- 
rounding circumstances. 


234  Coffey  ^s  Probate  Decisions,  Vol.  1. 

Undue  influence  may  be  defined  to  be  that  kind  of  influence 
or  supremacy  of  one  mind  over  another  by  which  that  other 
is  prevented  from  acting-  according  to  his  own  wish  or 
judgment.  A  testator  should  enjoy  full  liberty  and  freedom 
in  making  his  will  and  possess  the  power  to  withstand  all 
contradiction  and  control. 

That  degree,  therefore,  of  importunity  or  influence  which 
deprives  the  testator  of  his  free  agency,  which  is  such  as 
he  is  too  weak  to  resist,  and  which  renders  the  instrument 
not  his  free  and  unrestrained  act,  is  sufficient  to  invalidate  it. 

It  is  only  that  degree  of  influence  which  deprives  the  tes- 
tator of  his  free  agency,  and  makes  the  will  more  the  act  of 
others  than  of  himself,  which  will  avoid  it. 

Neither  advice,  nor  argument,  nor  persuasion  would 
vitiate  a  will  made  freely  and  from  conviction,  though  such 
will  might  not  have  been  made  but  for  such  advice  and  per- 
suasion. 

Undue  influence  must  not  be  such  as  arises  from  the 
influence  of  gratitude,  affection  or  esteem ;  biit  it  must  be 
the  control  of  another  will  over  that  of  the  testator,  whose 
faculties  have  been  so  impaired  as  to  submit  to  that  control, 
so  that  he  has  ceased  to  be  a  free  agent,  and  has  quite 
succumbed  to  the  power  of  the  controlling  will. 

Pressure  of  whatever  character,  if  so  exerted  as  to  over- 
power the  volition  without  convincing  the  judgment,  is  a 
species  of  constraint  under  which  no  valid  will  could  be 
made. 

Undue  influence  may  also  be  defined  as  that  which  compels 
the  testator  to  do  that  which  is  against  his  will  through  fear 
or  a  desire  of  peace,  or  some  feeling  which  he  is  unable  to 
resist,  and  but  for  which  the  will  would  not  have  been  made 
as  it  was. 

The  testator  may  have  known  what  he  was  about  when 
,he  made  the  will,  and  may  have  had  sufficient  capacity  to 
make  it;  this  may  be  true,  and  still,  if  his  mind  were  not 
free  to  act,  if  it  was  constrained  to  act,  or  if  it  had  become 
submissive  to  the  will  of  another  who  then  exercised  the 
commanding  control  over  the  testator,  by  reason  of  which 
freedom   of   thought    and    action    in   making   the   will   was 


Estate  of  Ingram.  235 

suppressed,  under  such  circumstances  the  will  should  be 
declared  invalid. 

Considering  together  the  two  issues  of  mental  soundness, 
and  unsoundness  and  undue  influence,  it  must  be  noted  that 
although  mere  weakness  of  intellect  does  not  prove  undue 
influence,  yet  it  may  be  that,  in  that  feeble  state,  the  testator 
more  readily  and  easily  becomes  the  victim  of  the  improper 
influences  of  unprincipled  and  designing  persons  who  see 
fit  to  practice  upon  him. 

It  may  be  necessary  to  consider  what  degree  of  influence 
will  vitiate  a  will,  and  this  depends  upon  the  capacity,  in 
other  respects,  of  the  testator.  What  would  be  an  undue 
influence  on  one  man  would  be  no  influence  at  all  on  another. 
A  man  of  strong  will,  whose  mind  is  in  its  wonted  vigor, 
could  not  be  shown  to  have  been  influenced  by  what  might 
be  such  influence  as  to  wholly  invalidate  the  will  of  one 
whose  mind  has  been  weakened  by  sickness,  dissipation,  or 
age. 

But  as  well  in  the  case  of  the  sick,  dissipated,  or  aged,  as 
in  that  of  one  in  health  and  vigor ;  in  the  case  of  him  whose 
intellect  is  weak,  as  of  him  whose  mind  is  strong,  that  influ- 
ence which  will  be  sufficient  to  invalidate  a  will  must  be  such 
as,  in  some  degree  or  to  some  extent,  to  deprive  the  party 
affected  thereby  of  his  free  agency,  and  to  make  the  will 
not  the  product  of  his  own  untrammeled  thoughts:  Com- 
stock  v.  Hadylone  etc.  Society,  8  Conn.  254,  20  Am.  Dec.  100. 

In  all  cases  of  this  kind  the  validity  of  the  will  depends 
more  upon  the  abuse  of  a  controlling  influence  than  upon 
the  fact  of  its  existence ;  more  upon  the  fact  that  the  testator 
was  not  fairly  dealt  with,  and  not  left  free  to  pursue  his 
own  natural  and  healthful  instincts  and  reasonable  desires, 
than  that  the  person  benefited  by  the  will  had  the  power  to 
control  such   will. 

It  need  not  be  proved  that  there  was  actual  exercise  of 
influence  at  the  point  of  time  the  will  was  executed. 

Influence  at  any  time,  the  effect  of  which  was  to  produce 
the  M'ill  without  the  fair  concurrence  of  the  mind  of  tlio 
testator,  is  sufficient  to  void  the  will. 


236  Coffey  ^s  Probate  Decisions,  Vol.  1. 

But  the  exercise  of  undue  influence  must  be  upon  the 
very  act  of  making  the  will ;  and  must  be  proved,  and  cannot 
be  inferred  from  opportunit}^  and  interest. 

Undue  influence  must  be  an  influence  exercised  in  relation 
to  the  will  itself,  not  in  relation  to  other  matters  or  transac- 
tions. But  this  principle  must  not  be  carried  too  far. 
When  it  is  seen  that,  at  and  near  the  time  when  the  will 
sought  to  be  impeached  was  executed,  the  alleged  testatrix 
was,  in  other  important  transactions,  so  under  the  influence 
of  the  persons  benefited  by  the  will,  that  as  to  them  she  was 
not  a  free  agent,  but  was  acting  under  undue  control,  the 
circumstances  may  be  such  as  to  fairly  warrant  the  conclusion, 
even  in  the  absence  of  evidence  bearing  directly  on  the 
execution  of  the  will,  that  in  regard  to  the  will  also  the 
same  influence  was  exercised. 

We  should  be  satisfled  by  a  comparison  of  the  will  in 
all  its  provisions,  and  under  all  the  exterior  influences  which 
were  brought  to  bear  upon  its  execution,  with  the  maker  of 
it  as  she  then  was,  that  such  a  will  could  not  be  the  result 
of  the  free  and  uncontrolled  action  of  such  a  person  so  oper- 
ated upon,  before  it  can  be  declared  invalid. 

All  influence  is  not  undue  influence.  The  procuring  a 
will  to  be  made,  unless  by  foul  means,  is  nothing  against  its 
validity.  A  man  may  by  fair  argument  and  persuasion,  or 
even  by  flattery,  induce  another  to  make  a  will,  and  even  to 
make  it  in  his  favor. 

If  the  testator  act  upon  the  suggestion  of  others,  this  will 
not  invalidate  the  will,  if  there  be  no  evidence  of  improper 
dealing  or  undue  influence. 

On  this  subject  no  distinct  or  precise  line  can  be  drawn. 
It  is  enough  to  say,  that  the  influence  exercised  must  be  an 
unlawful  importunity  on  account  of  the  manner  or  mode  of 
its  exertion,  and  by  reason  of  which  the  testatrix's  mind 
was  so  embarrassed  and  restrained  in  its  operation  that  she 
was  not  mistress  of  her  own  opinions  in  respect  to  the  dispo- 
sition of  her  estate.  The  only  inquiry  for  the  court  is,  was 
the  testatrix,  from  infirmity  or  age,  or  other  cause,  constrained 
to  act  against  her  will,  to  do  that  which  she  was  unable  to 
refuse  by  importunity  or  threats,  or  any  other  way,  by  which 


Estate  of  Ingram.  237 

one  acquires  dominion  and  control  over  another?     If  so,  va- 
lidity of  the  will  may  be  impeached. 

It  is  not  possible  to  define  or  describe  with  exactness 
what  influence  amounts  to  undue  influence  in  the  sense 
of  the  law;  this  can  only  be  done  in  general  and  approxi- 
mate terms.  In  each  case  the  decision  must  be  arrived  at 
by  application  of  these  general  principles  to  the  special 
facts  and  surroundings  in  the  case. 

No  influence  can  be  considered  as  undue  influence  which 
does  not  overpower  the  inclinations  and  judgment  of  the 
testatrix,  and  induce  a  disposition  of  her  property  contrary 
to  her  own  wishes  and  desires. 

Undue  influence  cannot  be  presumed,  but  must  be  proved 
in  each  case;  and  the  burden  of  proving  it  lies  on  the  party 
alleging  it. 

Undue  influence  is  not  a  presumption,  but  a  conclusion 
from  the  facts  and  circumstances  proved. 

In  Children's  Aid  Society  v.  Loveridge  (70  N.  Y.  387), 
Miller,  J.,  said: 

"The  position  of  the  contestant  is  that  the  execution  of 
the  will  was  procured  by  the  exercise  of  undue  influence  on 
the  part  of  those  who  were  the  beneficiaries,  and  who,  at  the 
very  time  of  the  making  of  the  same,  were  possessed  of  her 
confidence  and  surrounded  her. 

"In  order  to  avoid  a  will  upon  any  such  ground,  it  must 
be  shown  that  the  influence  exercised  amounted  to  a  moral 
coercion  which  restrained  independent  action  and  destroyed 
free  agency,  or  which,  by  importunity  which  could  not  be  re- 
sisted, constrained  the  testatrix  to  do  that  which  was  against 
her  will,  but  which  she  was  unable  to  refuse  or  too  weak  to 
resist. 

' '  It  must  not  be  the  promptings  of  affection ;  the  desire  of 
irratifving  the  wishes  of  another;  the  ties  of  attachment 
arising  from  consanguinity,  or  the  memory  of  kind  acts  and 
friendly  offices,  but  a  coercion  produced  by  importunity,  or 
by  a  silent,  resistless  power  which  the  strong  will  often 
exercise  over  the  weak  and  infirm,  and  which  could  not  be 
resisted,  so  that  the  motive  was  tantamount  to  force  or  fear. ' ' 


238  Coffey's  Probate  Decisions,  Vol.  1. 

To  sum  up  the  elements  which  go  to  constitute  undue 
influence,  the  facts  proved  must  be  such  as: 

1.  To  destroy  the  freedom  of  the  will  of  testatrix,  and 
thus  render  her  act  obviously  more  the  offspring  of  the  will 
of  others  than  of  her  own. 

2.  That  it  must  be  an  undue  influence  specially  directed 
toward  the  object  of  procuring  a  will  in  favor  of  the  par- 
ticular parties. 

3.  If  any  degree  of  free  agency  or  capacity  remained  in 
the  testatrix,  so  that  when  left  to  herself  she  was  capable 
of  making  a  valid  will,  then  the  influence  w^iich  so  controls 
her  as  to  render  her  making  a  will  of  no  effect,  must  be 
such  as  was  intended  to  mislead  her  to  the  extent  of  making 
a  will  essentially  contrary  to  her  duty;  and  it  must  have 
proved  successful  to  some  extent,  certainly :  1  Redfield  on 
Wills,  523,  524;  1  Jarman  on  Wills ;  Reynolds  v.  Root,  62  Parb. 
250 ;  2  Phill.  449-451 ;  Gardiner  v.  Gardiner,  34  N.  Y.  155 ; 
Saunders'  Appeal,  54  Conn.  108,  6  Atl.  185;  Disbrow's  Estate, 
58  Mich.  96,  24  N.  W.  624  (see  notes  to  this  case,  p.  629)  ; 
Maynard  v.  Vinton,  59  Mich.  139,  60  Am.  Rep.  27,  26  N. 
W.  401;  Estate  of  Tittel,  Myr.  16;  Estate  of  Black,  Myr. 
31 ;  Waterman  v.  Whitney,  11  N.  Y.  165,  62  Am.  Dec.  71. 

Having  stated  these  legal  propositions,  their  application 
to  the  facts  in  controversy  remains  to  be  seen.  Had  Mrs. 
Ingram,  at  the  time  this  instrument  was  executed,  sufficient 
memory  to  fairly  and  rationally  comprehend  the  effect  of 
what  she  was  doing?  Did  she  understand  and  appreciate  her 
relations  to  her  husband  and  her  relatives  ?  And  did  she  un- 
derstand the  character  and  effect  of  the  provisions  of  the  will  ? 
Did  she  have  a  reasonable  understanding  of  the  nature  of 
the  property  to  be  disposed  of,  and  of  the  persons  to  whom 
she  wished  to  distribute  it?  Did  she  exercise  her  own  choice 
and  did  she  express  her  own  wishes?  If  she  did  have  such 
understanding,  she  had  the  legal  right  to  make  any  disposition 
of  her  property  that  she  pleased. 

If  she  acted  freely  and  with  proper  understanding,  she 
had  a  legal  right  to  ignore  her  husband  and  all  her  kin 
— "to  cut  them  off  with  a  shilling"— and  send  her  property 
to   strangers.     Neither   courts   nor   juries   can   say   whether 


Estate  of  Ingram.  239 

this  legacy  or  that  is  a  prudent  or  wise  one  to  make; 
by  attempting  to  do  so  we  should  attempt  to  make  our  will 
take  the  place  of  that  of  the  testatrix.  Such  an  instrument 
should  not  be  lightly  set  aside.  It  is  only  when  the  court  is 
brought  irresistibly  to  the  conclusion,  from  the  evidence,  that 
the  will  proffered  for  probate  was  procured  by  the  applica- 
tion of  a  dominant  and  controlling  intelligence  to  an  inferior 
understanding  or  a  feebler  will  in  an  improper  manner,  that 
the  instrument  will  be  declared  void. 

The  proponent  of  this  instrument,  Junius  L.  Hatch,  is  a 
keen,  shrewd,  cool  man  of  a  large  and  varied  experience 
and  extensive  worldly  knowledge,  a  fair  judge  of  human 
nature,  with  quick  perceptions  of  the.  weak  points  of  his 
fellow-mortals ;  ready  to  seize  advantages,  and  steadfast  in 
holding  on;  in  address  plausible,  in  deportment  perfect,  in 
manner  insinuating,  in  aspect  benevolent ;  in  all  exterior 
attributes  calculated  to  secure  the  trust  of  a  woman  whose 
mind  was  weakened  by  the  natural  advance  of  senility  and 
tainted  by  the  disease  of  jealousy. 

Take  such  a  man,  as  his  counsel  describes  him,  with  his 
manner  and  demeanor,  and  everything  bearing  the  impress 
of  truth ;  his  actions  invested  with  the  appearance  of  honesty, 
his  utterance  sympathetic  and  apparently  sincere ;  an  out- 
ward seeming  of  candor,  calmness  and  consistency;  qualities 
which  indicated  a  man  of  humane  heart,  kindly  nature  and 
disinterested  disposition.  It  was  natural  he  should  have 
made  a  deep  impression  upon  the  morbid  mind  of  this  aged 
woman.  Once  he  discovered  the  vulnerable  point  in  her 
character,  he  operated  adroitly  and  persistently.  As  against 
the  clever  intrigues  of  such  a  man,  the  imperfect  intellect 
and  infirm  purpose  of  the  youthful  husband  of  this  old  lady 
had  no  prospect  of  success.  From  the  moment  Junius  L. 
Hatch  first  met  Hannah  G.  Ingram,  the  young  husband  was 
deposed,  his  authority  was  gone,  and  to  it  succeeded  the  para- 
mount influence  of  a  will  strong  and  resolute,  an  intelligence 
always  alert  and  vigilant  in  the  prosecution  of  the  design 
to  gain  the  confidence  and  to  control  the  fortune  of  Hannah 
G.  Ingram.  Between  these  two  men  there  is  the  strongest 
contrast  of  character  and  culture.     The  career  of  Hatch  was 


240  Coffey's  Probate  Decisions,  Vol.  1. 

that  of  a  man  of  great  adaptability  to  changing  circumstances. 
At  this  time,  in  his  sixty-second  year,  he  has  been  actively 
employed  in  the  ministry  of  the  gospel,  in  the  civil  service 
of  the  government,  in  the  profession  of  a  school  teacher, 
also  as  a  journalist,  being  both  an  editorial  writer  and  a 
newspaper  reporter.  The  title  of  "doctor,"  b}^  which  he  is 
often  described,  he  disclaims.  He  was  regularly  ordained  at 
Gloucester,  Massachusetts,  and  for  several  years  had  charge 
of  a  Congregational  church.  Changing  his  religious  views, 
he  became  a  Unitarian  minister,  and  accepted  a  settlement 
over  a  Unitarian  church  in  Massachusetts  and  in  New  Hamp- 
shire, which  he  retained  for  about  ten  years.  The  last  charge 
he  undertook  was  in  San  Jose  in  1882,  which  charge  he  vol- 
untarily relinquished,  because  of  inadequacy  of  remuneration. 
Subsequently  he  taught  in  the  public  schools,  and  privately, 
for  a  number  of  years.  Thereafter  he  became  a  clerk  in  the 
custom-house  of  this  port,  and  finally  engaged  in  journal- 
ism, which  is  his  present  occupation. 

It  was  while  plying  his  vocation  as  a  journalist,  acting  as 
a  reporter  for  the  "Morning  Call"  newspaper,  that  he  first 
encountered  Mrs.  Ingram,  pending  an  inquiry  into  her  sanity 
in  this  court  and  department.  He  was  sent  by  his  employer 
to  interview  her,  to  ascertain  if,  according  to  his  opinion, 
she  was  insane.  Upon  that  occasion  he  had  an  hour's  inter- 
view with  her.  He  called  again  the  next  day,  and  after  that 
saw  her  every  day  or  two  for  several  weeks.  These  visits 
were  made,  according  to  his  story,  at  her  special  instance  and 
request.  Complying  with  her  desire,  he  wrote  articles  to 
correct  public  opinion  as  to  her  case,  which  articles  he  caused 
to  be  inserted  in  various  newspapers.  His  visits  were  con- 
tinued by  her  wish,  because  she  felt  she  needed  a  friend  for 
counsel  and  advice,  and  she  had  confidence  in  Dr.  Hatch. 
Their  relations  became  very  friendly  and  confidential.  She 
visited  his  family  sometimes,  and  occasionally  his  daughter 
visited  her,  and  she  expressed  herself  as  grateful  for  the 
kindness  of  his  daughter  in  sending  her  delicacies  during  her 
illness. 

Dr.  Hatch  was  assiduous  in  his  attentions  to  Mrs.  Ingram 
being  sometimes  as  frequent  in  his  visitations  as  three  or 


Estate  of  Ingram.  241 

four  times  a  day,  and  the  result  of  his  visits  seems  to  have 
been  a  fastening  of  the  delusion  in  her  mind  that  her  husband 
was  unfaithful  to  her,  principally  with  the  "Spanish 
woman,"  otherwise  Miss  Pratt. 

It  is  in  evidence  that  Dr.  Hatch  himself  said  that  he  had 
no  doubt  that  there  was  truth  in  the  "Spanish  woman's" 
story;  that  he  had  followed  it  up  and  found  some  basis  for 
it;  and  he  also  declared  to  one  of  the  witnesses  (see  evidence 
of  George  H.  Perry)  that  Ingram  was  a  lazy,  shiftless 
fellow,  and  that  he  had  abused  his  wife. 

"While  he  denies  that  he  ever  said  or  did  anything  to 
encourage  her  in  her  impressions  about  her  husband,  it  is 
diiiicult  to  reconcile  this  statement  with  the  declarations  just 
adverted  to,  made  to  witness  Perry,  and  with  the  strain  and 
tenor  of  the  letter  from  him,  dated  San  Francisco,  January 
28,  1886,  to  Ingram. 

(See  Exhibit  "F,"  a  printed  copy  of  which  is  here 
inserted,  as  well  as  the  letter  to  which  it  is  an  answer.) 

Exhibit  "D." 

The  first  letter  from  Ingram  to  Rev.  Dr.  Hatch  reads: 

"San  Francisco,  Jan.  22d,  1886. 

"Mr.  Hatch: — The  snake  in  the  grass,  you  are  a  lier,  a 
villian  and  a  coward  of  the  deepest  die.  You  put  a  piece 
in  the  papers  about  me,  and  you  lied  when  you  did  it.  You 
have  been  trying  to  seperate  me  and  my  wife  by  lieing  to 
her  about  the  Spanish  woman,  you  are  a  dam  lier  of  the  worst 
kind.  I  defy  you  or  anyone  to  prove  that  I  know  that  Spanish 
woman  or  had  anything  to  do  with  her  you  are  trying  to 
separate  my  wife  and  me  so  you  can  get  hold  of  her  proporate. 
I  tell  you,  you  shall  not  get  hold  of  her  proporate  as  long 
as  I  live.  I  am  not  afraid  of  you  or  your  kind  in  Court  or  out. 
I  will  make  your  grey  hairs  stand  on  ends  when  I  get  you 
in  Court.  You  dare  not  tell  me  to  my  face  what  you  are  and 
have  been  telling  in  this  city  about  me.  they  know  you  are 
after  my  wife  properately  and  lieing  about  me  and  now  do 
your  damist  you  are  a  black  villian  and  a  coward  and  a  pre- 
tendend  friend,  you  mean  low  life  scoundle  you  can  fine 
me  at  754  Folsom  st  at  night  or  at  Scott  and  Clay  st  in  the 

Prob.  Dec,  Vol.  I — 16 


242  Coffey  ^s  Probate  Decisions,  Vol.  1. 

day  time.  I  defy  you  to  face  me  like  a  man  and  tell  to  my 
face  the  lies  you  are  telling  I  will  handle  you  Hatch  in  a 
differend  way  that  I  did  Abbott  which  will  be  in  Court  I  will 
fight  you  face  to  face  in  any  proceeding  that  you  wish  to 
take  I  am  working  steady  and  am  not  a  loafer  as  you  say  I 
am.  You  mean  low  life  villian  you  will  have  to  prove  all  those 
things  if  you  do  not  think  I  can  put  you  behind  with  your 
grey  hairs  behind  the  bars  as  people  has  been  trying  to  do 
with  me.     I  defy  you  to  starte  in. 

"From  JOHN  W.  INGRAM, 

"754  Folsom  st." 

Exhibit  "F." 

The  answer  of  Rev.  Dr.  Hatch  to  Ingram's  epistle  reads; 

"San  Francisco,  January  28,  1896. 

' '  John  W.  Ingram : — Your  very  abusive  and  insulting  let- 
ter is  really  unworthy  of  notice  or  reply,  but  I  have  con- 
cluded to  answer  it  so  far  as  to  remind  you  that  you  have 
never  received  anything  but  kindness  from  me,  and  to  say 
that  your  language  to  me  is,  therefore,  particularly  dis- 
creditable to  you.  'Ingratitude  is  a  monster,'  and  you  are 
certainly  monstrously  ungrateful  for  the  many  favors  I  have 
done  you,  from  the  day  I  first  saw  you  behind  the  bars  in 
the  city  prison,  to  the  last  time,  when  I  gave  you  money  to 
pay  for  food  and  lodging. 

"Have  you  forgotten  who  it  was  that  exerted  himself 
to  assist  your  wife's  heroic  efforts  to  save  you  from  a  fel- 
on's cell  at  San  Quentin,  where,  but  for  us,  you  would 
probably  at  this  time  be  wearing  motley  prison  garb  and 
serving  out  a  sentence  of  fourteen  years?  Have  you  for- 
gotten that  when  there  was  a  possibility  that  you  might  be 
let  off  with  a  fine  of  $500 — I  say,  have  you  forgotten  who  it 
was  stood  ready  with  his  $500  to  pay  that  fine?  And  when 
you  had  to  go  to  jail,  instead,  have  you  no  recollection  who 
bought  a  bed  .and  other  things  to  make  you  comfortable? 
And,  when  Mrs.  Ingram  could  not  be  admitted  after  hours, 
who  used  his  privilege  as  a  reporter  to  carry  you  in  food, 
fruit,  etc.? 

"Is  it  possible,  Ingram,  that  your  memory  is  so  treach- 
erous  and  that  you   have   really   forgotten    also   the   many 


Estate  of  Ingram.  243 

favors  I  have  done  you  since  your  discharge,  taking  your 
property  out  of  pawn  repeatedly;  letting  you  have  money 
as  you  needed,  and,  when  you  had  no  work,  going  round 
to  one  shop  after  another  to  get  it  for  you?  Or  is  it  pos- 
sible that,  with  all  these  favors  in  your  mind,  as  you  have 
repeatedly  acknowledged  them  to  me  in  the  strongest  terms, 
declaring  that  you  would  never,  never  forget  my  kindness, 
would  return  it  whenever  you  could,  and  be  my  friend  for 
life,  you  turn  on  me  in  this  abusive  way  ?  You  remind  me  of 
the  venomous  reptile  the  farmer  found  almost  dead  with 
cold  in  the  field.  ]Moved  with  compassion,  he  carried  it  home 
and  w^armed  it  at  his  hearth,  when  it  turned  its  fangs  on  its 
benefactor  and  stung  him  for  his  pains. 

"But  why  should  I  expect  you  to  be  grateful  to  me  when 
you  have  been  ungrateful  to  your  generous  and  long-suffer- 
ing wife?  Why  kind  to  me  when  you  have  been  so  cruel 
to  her,  who  has  done  so  much  more  for  you  than  I  ?  You 
falsely  charge  me  with  having  tried  to  separate  you  and  her. 
On  the  contrary,  I  have  always  tried,  when  you  had  es- 
tranged her  from  you  by  your  bad  conduct  and  your  ex- 
asperating taunts  about  being  'crazy,'  etc.;  I  have  tried,  I 
say,  to  smooth  over  matters  and  keep  you  together.  You 
pretend  to  think  me  actuated  by  mercenary  and  selfish  mo- 
tives— judging  me  by  yourself,  probably,  for  you  have 
thrown  off  the  mask  now  completely,  and  in  the  letter  you 
wrote  me,  as  well  as  in  the  letter  you  wrote  her,  you  show 
clearly  that  your  great  anxiety  is  to  get  hold  in  some  way 
of  her  property,  which  she  is  determined  you  shall  never  do^ 
after  treating  her  as  you  have,  and  I  cannot  blame  her  for 
it. 

"Instead  of  going  to  work  and  keeping  to  work  and  re- 
paying her,  as  you  promised,  a  part  at  least  of  the  expense 
you  had  been  to  her,  you  have  not  earned  your  board  since 
you  got  out  of  jail,  but  have  been  au  additional  expense 
and  burden  to  her. 

"I  did  not  call  you  a  'loafer,'  but  I  did  say  you  seemed 
to  prefer  to  live  on  your  wife's  slender  income  without 
work  rather  than  to  work  and  earn  your  own  living,  and 
I  say  so  still. 


244  Coffey's  Probate  Decisions,  Vol.  1. 

"The  proposition  you  have  repeatedly  made  to  her  that 
you  would  go  to  work  and  give  her  your  wages  if  she  would 
deed  the  property  to  you,  or  have  the  deed  made  out  in  your 
names  together,  shows  your  disposition  plainly  enough.  If 
you  had  not  been  so  greedy  and  avaricious,  you  would  have 
fared  much  better,  probably.  With  regard  to  what  you  say 
of  the  woman  Pratt,  Mrs.  Ingram  showed  me  a  note,  written 
by  you  while  you  were  in  jail,  acknowledging  that  what  she 
(Mrs.  Ingram)  had  said  about  the  woman  and  of  your  re- 
lations with  her  (Pratt)  was  all  true,  and  at  her  request  I 
carried  an  item  to  that  effect  to  the  paper.  She  has  that 
note  in  her  possession  still,  and  the  handwriting  is  unmis- 
takably yours.  You  have  made  the  last  year  and  more  of 
your  wife's  life  very  unhappy,  and  the  disease  under  which 
she  is  now  suffering  severely,  and  which  may  terminate 
fatally,  I  have  every  reason  to  believe  was  brought  on  by 
mental  worry  on  your  account.  I  have  done  all  I  could  for 
her  comfort  and  relief,  and  shall  continue  to  do  as  long  as 
she  lives.  I  have  never  given  her  an  unkind  word  or  wor- 
ried her  by  an  unkind  act.  It  were  well  for  your  peace  of 
mind,  methinks,  if  you  could  say  the  same.  She  does  not 
wish  to  see  you  at  present,  and  has  enjoined  me  not  to  in- 
form you  where  she  is,  lest  you  should  trouble  and  annoy 
her,  as  you  did  the  last  time  she  saw  you.  When  she  wishes 
to  see  you  I  will  notify  you,  and  she  can  tell  you,  if  she 
has  not  already  told  you,  that  I  have  never  sought  to  influ- 
ence her  against  you,  or  with  regard  to  the  disposition  of 
her  property. 

"I  hold  a  note  signed  jointly  by  you  and  her  for  one 
hundred  and  some  odd  dollars,  on  which  she  has  paid  me 
sixty  dollars.  The  remainder  you  promised  to  pay  from 
your  earnings,  with  other  moneys  advanced  since  you  were 
living  with  her  on  O'Farrell  and  Polk  streets.  You  kept 
an  account  of  this,  I  believe,  and,  if  I  am  not  mistaken,  it 
amounts  to  about  thirty  dollars.  You  owe  me  five  dollars 
more  on  your  watch  chain,  which  I  took  out  of  pawn  for 
the  third  time,  and  which  I  hold  as  security  for  the  debt. 
If  you  mean  to  be  honest  with  me  you  will  pay  me  out  of 
your  wages  as  soon  as  you  can.  I  will  charge  you  no  in- 
terest if  you  do  that,  and  will  hold  the  chain  for  you. 


Estate  of  Ingram.  245 

"I  am  glad  you  are  at  work,  as  you  say  your  are,  and 
hope  you  will  keep  at  it,  and  show  by  your  future  con- 
duct that  you  are  determined  to  redeem  your  character, 
and  live  so  that  you  will  have  no  occasion  to  be  ashamed 
of  yourself  in  the  future.  If  any  person,  man  or  woman, 
advises  you  to  any  other  course,  and  tries  to  induce  you  to 
attempt  to  get  possession  of  your  wife's  property,  by  force 
or  by  fraud,  or  in  any  way  except  with  her  free  will  and 
consent,  on  the  ground  of  affection  and  regard,  such  per- 
son is  a  poor  counselor,  and  your  enemy  instead  of  your 
friend.  J.  L.  HATCH. 

"P.  S.— At  Mrs.  Ingram's  request,  I  read  the  letter  you 
sent  me,  and  also  the  one  you  sent  her,  to  her,  and  I  have 
also  read  to  her  this  reply.  She  says  I  have  spoken  the 
truth,  but  have  put  it  more  mildly  than  she  would  have  done 
if  w'riting  to  you.  You  have  my  permission  to  read  this  let- 
ter to  Mrs.  Fitzgerald  and  her  niece,  or  any  others. 

"J.  L.  H." 

The  association    between    Dr.    Hatch    and  Mrs.    Ingram, 
under   the   circumstances,   was    extraordinarily   confidential 
In   all   his   intercourse  wdth   her   he   appears   to  have   been 
her  business  adviser,   and  to  have  been  substituted  in  her 
confidence,  if  not  in  her  afi^ections,   for  her  husband.     He 
controlled  her  movements;   when  her  husband   was   in  jail 
she  communicated  with  him  through  Hatch;  when  she  was 
finally  taken  sick — so  sick  that  she  had  to  be  carried  to  the 
German  Hospital — Dr.   Hatch  was  still  sedulous  in  his  at- 
tentions to  her,  and  in  his  supervision  over  her  affairs.     It 
was  he  who  took  her  to  the  hospital,  where,  it  appears,  she. 
never  saw  her  husband.     There  she  lay  prostrated  by  dis>--. 
tressing  corporal  maladies ;  she  had  liver  trouble,  liver  ob- . 
siruction,  and  jaundice,  to  which  diseases  she  succumbed  on 
the   1st  of  February,   1886.     From  the   day  he  became   ac- 
quainted with  her,   in   December,   1884,  to   the  day  of   her 
death,  Dr.  Hatch  never  lost  sight  or  control  of  Mrs.  Ingram. 
This  is  the  tenor  of  the  testimony.     In  all  her  various  lodg- 
ing places  he  was  her  most  frequent  visitor ;  his  interviews  ; 
were  commonly  out  of  the  presence  of  her  husband;   even 
when  Ingram  was  in  the  house,  his  wife  and  Hatch  woulci^ 


246  Coffey's  Probate  Decisions,  Vol.  1. 

have  their  interview  without  his  presence  (testimony  of  Mrs. 
Golden)  ;  and  it  is  in  evidence  that  whereas,  before  Dr. 
Hatch's  visit,  she  would  be  very  friendly  with  her  husband, 
or  "Johnnie,"  as  she  was  accustomed  to  call  him,  after 
Hatch's  departure  her  manner  toward  "Johnnie"  would 
change  (testimony  of  Mrs.  Carpenter).  Her  talk  about  the 
imaginary  "Spanish  woman"  became,  also,  more  pronounced 
at  these  times;  "she  said  if  her  husband  had  not  run  with 
the  'Spanish  woman,'  she  would  leave  it  all  (her  property) 
to  him." 

That  Dr.  Hatch  did  not  discourage  her  in  the  entertain- 
ment of  this  delusion  as  to  the  "Spanish  woman"  is  shown 
by  the  letter  to  Ingram,  Exhibit  "F,"  hereinbefore  in- 
serted. In  this  most  extraordinary  effusion,  in  reply  to  In- 
gram's accusation  (Exhibit  "D")  that  he  (Hatch)  had 
been  trying  to  separate  Ingram  and  wife  by  lying  to  her 
about  the  "Spanish  woman,"  so  he  (Hatch)  could  get  hold 
of  the  property,  Hatch  says:  "With  regard  to  what  you  say 
of  the  woman  Pratt,  Mrs.  Ingram  showed  me  a  note  written 
by  you  while  you  were  in  jail,  acknowledging  that  what  she 
(Mrs.  Ingram)  had  said  about  the  woman  and  of  your  re- 
lations with  her  (Pratt)  was  all  true,  and  at  her  request 
I  carried  an  item  to  that  effect  to  the  paper.  She  has  that 
note  in  her  possession  still,  and  the  handwriting  is  unmis- 
takably yours."  This  note,  the  authorship  of  which  is  here 
imputed  to  Ingram,  but  which  is  denied  by  him,  was  not 
produced  on  the  trial.  It  was  not  found  among  her  papers, 
and  its  nonproduction  is  significant.  In  the  same  connec- 
tion the  postscript  to  this  letter  from  Hatch  is  noteworthy. 
"P.  S. — At  Mrs.  Ingram's  request,  I  read  the  letter  you 
sent  me,  and  also  the  one  you  sent  her,  to  her;  and  I  have 
also  read  to  her  this  reply.  She  says  I  have  spoken  the 
truth,  but  have  put  it  more  mildly  than  she  would  have  done 
if  writing  to  you." 

Whatever  may  be  said  of  Dr.  Hatch's  letter.  Exhibit 
"F,"  it  can  hardly  be  accused  of  drawing  it  mild.  This 
letter  certainly  speaks  for  itself,  and  it  is  of  great  conse- 
quence in  showing  the  closeness  of  his  relation  to  and  the 
strength  of  his  influence  over  the  wife  of  Ingram.  What 
was  the  object  of  his  frequent  visits  to  Mrs.   Ingram?     It 


Estate  of  Ingram.  247 

was  all  business.  Although,  by  virtue  of  his  sacerdotal  call- 
ing, he  might  have  administered  to  her  spiritual  consolation, 
no  hint  of  such  ministration  is  shown  by  the  evidence;  no 
such  suggestion  is  contained  in  the  letter  to  Ingram  (Ex- 
hibit "F")  ;  nowhere  does  it  appear  that  in  Dr.  Hatch's 
mind  was  there  aught  but  business;  "property"  is  his  over- 
mastering idea,  his  ruling  thought  in  all  his  intercourse  and 
correspondence  with  the  Ingrams.  In  his  letter  to  Ingram 
(Exhibit  "F")  he  says:  "If  any  person,  man  or  woman, 
advises  you  to  any  other  course,  and  tries  to  induce  you  to 
get  possession  of  your  wife's  property,  by  force  or  by  fraud, 
or  in  any  way  except  with  her  free  will  and  consent,  on  the 
ground  of  affection  and  regard,  such  person  is  a  poor  coun- 
selor, and  your  enemy  instead  of  your  friend. ' '  In  this  curi- 
ous contribution  to  the  literature  of  will  contests,  it  is  diffi- 
cult to  discern  the  spiritual  element.  It  is  of  the  earth, 
«arthy. 

But  how  came  the  will  into  existence?     One  day,  about 
the   middle   of   February,    1885,    according   to   Dr.    Hatch's 
testimony,  he  called  upon  Mrs.  Ingram;  she  gave  him  some 
"specifications"  from  which  he  was  to  draw  up  the  form; 
lie  did  so,  he  did  not  write  the  specifications.     Who   did? 
His  son,   William   K.    Hatch,   a   young  man   of   twenty-one 
years  of  age,  who  never  thitherto  had  drawn  a  will — a  bag- 
gage and  brakeman  on  the  railroad — it  was  this  inexperi- 
-enced    youth    who    was    selected  to  take   down  the  "memo- 
randa" from  which  the  will  was  elaborated.     He  purchased 
the  blank  form,  and  from  the  "specifications"  or  "memo- 
randa" the  will  was  drawn  by  Junius  L.  Hatch,  the  propo- 
nent, the  principal  beneficiary,  residuary  legatee,  and  execu- 
tor.      Where    are    the    "specifications"    or    "memoranda"? 
Their  nonproduction  must  be  regarded  as  important.     Who 
so  much  interested  in  their  preservation  and  production  as 
the  proponent?     It  was  in  his  power  to  preserve  this  paper; 
it  was  his  interest  to  produce  it ;  and  the  circumstance  that 
it   is   not   preserved   and   produced   must   tell    against   him. 
The  will  itself  is  filled  out  in  a  printed  form,  the  filling  be- 
ing in   his   handwriting,    and   the   inspection   of   the   paper 
shows    that    it    was    carefully    drawn    in    his    interest.      If 
-drawn  from  the  "specifications"  dictated  by  her  to  a  youth 


248  Coffey's  Probate  Decisions,  Vol.  1. 

who  had  no  experience  in  drawing  wills,  presumably  un- 
familiar with  technical  legal  terms,  it  is  strange  that  such 
exactitude  of  legal  expression  should  obtain,  as  is  particu- 
larly shown  in  the  paragraph  "Eighthly,"  in  words  as  fol- 
lows :  "  I  hereby  give,  devise  and  bequeath  to  Junius  L. 
Hatch,  journalist,  now  of  the  City  and  County  of  San  Fran- 
cisco, my  house  and  lot,  No.  1724  Hyde  street,  including 
the  cottage  in  the  rear,  now  numbered  1235  Vallejo  street; 
and  I  do  also  hereby  make  the  said  Junius  L.  Hatch  my 
residuary  legatee."  It  is  hard  to  believe  that  this  residuary 
clause  came  from  the  lips  of  the  decedent,  and  was  set  down 
in  such  terms  by  the  inexperienced  hand  of  the  young  man 
Avho  had  never  before  drawn  a  will;  and  the  appearance  of 
the  script  adds  to  the  improbability  of  such  fact,  and 
strengthens  the  impression  that  it  was  the  inspiration  and 
the  act  of  the  proponent  of  this  instrument.  While  he  dis- 
claims having  anything  to  do  with  the  dictating  of  the  terms 
of  that  instrument,  his  own  son  testifies  that  he  (the  son) 
went  to  Mrs.  Ingram  at  the  request  of  his  father,  and  then 
from  her  instructions  prepared  the  "memoranda"  for  the 
will.  The  proponent  testifies  that  before  Mrs.  Ingram  went 
to  Paso  Robles  Springs,  she  told  him  what  she  had  deter- 
mined to  do  about  her  property,  because  of  her  husband's 
infidelity  and  his  ill-treatment  of  her;  she  also  spoke  of  the 
Cloughs,  her  nephews,  and  their  conduct. 

To  corroborate  his  statements  that  he  had  nothing  to  do 
with  the  disposition  of  the  property,  he  introduces  a  witness, 
Dr.  Thomas  Grant,  who  testified  that  he  knew  Mrs.  Ingram, 
and  also  Dr.  Hatch,  the  latter  of  whom  lived  in  the  same 
house  for  awhile  with  them.  Grant  saw  Mrs.  Ingram  on  Polk 
street  before  she  went  to  Paso  Robles  Springs,  and  she  said 
she  had  everything  all  fixed  in  case  she  did  not  come  back; 
she  left  everything  to  Dr.  Hatch,  he  and  his  family  had 
been  kind  to  her;  only  $5  to  her  husband;  he  had  been 
unkind  to  her;  all  he  wanted  was  her  property;  he  had  tried 
to  get  her  in  the  asylum;  she  left  $5  each  to  her  nephews; 
they  had  been  unkind;  this  was  about  the  sum  and  substance 
of  what  she  said  to  the  witness  Grant,  according  to  his 
testimony.  She  asked  him  to  remember  what  she  told  him 
in  case  she  didn't  come  back  from  the  springs.     Upon  the- 


Estate  of  Ingram.  249 

cross-examination  of  this  witness  it  appeared  that  his  re- 
lations with  Dr.  Hatch  were  quite  friendly,  and  that  he 
went  to  see  Mrs.  Ingram  at  the  instance  of  and  in  company 
with  him.  What  was  the  purpose  of  this  joint  visit?  Al- 
though this  witness,  according  to  his  statement,  had  been 
at  one  time  a  regular  physician,  it  is  many  years  since  he 
pursued  that  calling  as  a  profession,  and  not  at  all  in  this 
city,  his  nearest  connection  with  the  practice  being  that  he 
deals  in  medicines  in  a  small  way,  being  occupied  at  other 
times  in  the  building  of  houses,  and  his  medical  attentions 
to  Mrs.  Ingram  were  of  the  slenderest  character. 

The  conclusion  that  the  court  drew  from  his  testimony 
was  that  the  real  object  and  purpose  of  his  visit  to  Mrs. 
Ingram  was  to  substantiate  the  premeditated  plan  of  the 
proponent  of  this  will :  that  Mrs.  Ingram  was  acting  of  her 
own  volition  without  restraint  exercised  by  Dr.  Hatch  or 
any  one  else,  and  upon  rational  premises  as  against  her 
husband  and  her  nephews.  If  the  deliberate  design  of  Dr. 
Hatch  were  to  prepare  his  proofs  in  advance  for  the  es- 
tablishment of  this  paper  as  a  valid  will,  he  could  not  have 
acted  with  greater  care,  the  vice  of  his  process  being  the 
excess  of  precaution  in  laying  his  foundations  in  some  par- 
ticulars; as,  for  example,  in  the  case  of  the  witness  Grant, 
and  the  endeavor  to  materialize  the  mythical  "Spanish 
woman";  and  for  other  instances,  see  his  own  testimony 
and  that  of  his  son,  and  the  testimony  throughout. 

In  the  infrequent  intervals  afforded  by  the  other  occu- 
pations of  this  department,  and  in  the  face  of  interruptions 
necessarily  suffered  bj^  and  in  the  discharge  of  other 
duties,  I  have  endeavored  to  make  a  careful  examination 
and  collation  of  the  legal  principles  applicable  to  the  issues 
in  this  case,  and  a  fair  statement  of  the  facts  adduced  in 
evidence.  If  there  is  any  omission  to  comment  upon  any 
particular  statements  of  witnesses,  it  is  because  I  have  at- 
tached more  importance  to  what  I  have  set  down  than  to 
what  I  have  passed  by  lightly  or  omitted  to  enlarge  upon; 
but  upon  the  whole  case,  as  presented,  I  do  not  see  how  the 
conclusions  can  be  escaped:  (1)  That  at  the  time  of  making 
this  will  the  testatrix  was  laboring  under  an  insane  delusion, 
and  that  this  will  was  the  product  of  that  delusion ;  and  (2) 


250  Coffey  ^s  Probate  Decisions,  Vol.  1. 

that  she  was  unduly  influenced  to  make  this  will  in  favor  of 
the  proponent,  Junius  L.  Hatch,  and  that,  consequently,  the 
instrument  here  propounded  should  be  and  it  is  refused  ad- 
mission to  probate.     Let  judgment  be  entered  accordingly. 


"An  Insane  Delusion  is  the  spontaneous  production  of  a  diseased 
mind,  leading  to  the  belief  in  the  existence  of  something  which 
either  does  not  exist  or  does  not  exist  in  the  manner  believed — a 
belief  which  a  rational  mind  would  not  entertain,  yet  which  is  so 
firmly  fixed  that  neither  argument  nor  evidence  can  convince  to  the 
contrary":  Estate  of  Kendrick,  130  Cal.  360,  62  Pae.  605;  Potter 
V.  Jones,  20  Or.  239,  25  Pac.  769,  12  L.  E.  A.  161;  note  to  People  v. 
Hubert,  63  Am.  St.  Eep.  30,  on  insane  delusions.  A  delusion  which 
will  destroy  testamentary  capacity  must  spring  up  spontaneously  in 
the  mind,  without  extrinsic  evidence  of  any  kind  to  support  it.  If 
it  has  any  foundation  in  fact,  if  it  has  any  evidence,  however  slight, 
as  its  basis,  it  is  not  an  insane  delusion.  One  cannot  be  said  to  be 
under  such  a  delusion  if  his  condition  of  mind  results  from  a  belief 
or  inference,  however  irrational  or  unfounded,  drawn  from  the  facts 
which  are  shown  to  exist:  Estate  of  Scott,  128  Cal.  57,  60  Pac.  527; 
In  re  Cline's  Will,  24  Or.  175,  41  Am.  St.  Eep.  851,  33  Pac.  542; 
Skinner  v.  Lewis,  40  Or.  571,  67  Pac.  951,  62  Pac.  523.  Moreover, 
the  belief  must  be  real,  not  simulated;  and  it  must  be  persistent, 
not  a  "fleeting  vagary"  or  a  temporary  hallucination:  Estate  of  Eed- 
field,  116  Cal.  637,  48  Pac.  794;  Estate  of  Caleb,  139  Cal.  673,  73 
Pac.  539.  And  furthermore,  a  delusion,  to  be  fatal  to  the  validity 
of  a  will,  must  be  operative  in  the  testamentary  act:  Estate  of  Eed- 
field,  116  Cal.  637,  48  Pac.  794;  Estate  of  Dolbeer,  149  Cal.  227,  86 
Pac.  695.  It  is  not  enough  that  a  delusion  may  exist;  its  connection 
with  the  will  must  be  made  manifest,  and  shown  to  have  influenced 
its  provisions:  Potter  v.  Jones,  20  Or.  239,  25  Pac.  769,  12  L.  E.  A. 
161. 

"In  ordinary  language,  a  person  is  said  to  be  under  delusion  who 
entertains  a  false  belief  or  opinion  which  he  has  been  led  to  form 
by  reason  of  some  deception  or  fraud,  but  it  is  not  every  false  or  un- 
founded opinion  which  is  in  legal  phraseology  a  delusion,  nor  is 
every  delusion  an  insane  delusion.  If  the  belief  or  oijinion  has  no 
basis  in  reason  or  probability,  and  is  without  any  evidence  in  its  sup- 
port, but  exists  without  any  process  of  reasoning,  or  is  the  sponta- 
neous ofl^spring  of  a  perverted  imagination,  and  it  is  adhered  to 
against  all  evidence  and  argument,  the  delusion  may  be  truly  called 
insane;  but  if  there  is  any  evidence,  however  slight  or  inconclusive, 
which  might  have  a  tendency  to  create  the  belief,  such  belief  is 
not  a  delusion.  One  cannot  be  said  to  act  under  an  insane  delusion 
if  his  condition  of  mind  results  from  a  belief  or  inference,  however 


Estate  of  Ingram.  251 

irrational  or  unfounded,  drawn  from  facts  which  are  shown  to  exist": 
Estate  of  Scott,  128  Cal.  57,  60  Pac.  527. 

The  Undue  Influence  Which  Invalidates  a  Will  must  be  such  as 
relates  to  the  will  itself,  and  operates  upon  the  testator  at  the  time 
of  his  making  the  will:  Estate  of  Kaufman,  117  Cal.  288,  59  Am. 
St.  Eep.  179,  49  Pac.  191;  Estate  of  Flint,  100  Cal.  391,  34  Pac.  863; 
Estate  of  Shell,  28  Colo.  167,  89  Am.  St.  Eep.  181,  63  Pac.  413,  53  E. 
E.  A.  387;  Gwin  v.  Gwin,  5  Idaho,  271,  48  Pac.  295;  Estate  of  Hol- 
man,  42  Or.  345,  70  Pac.  908.  General  influence,  not  directly  brought 
to  bear  upon  the  testamentary  act,  though  strong  and  controlling,  is 
not  enough:  Estate  of  McDevitt,  95  Cal.  17,  30  Pac.  101;  Estate  of 
Black,   132  Cal.   392,   64   Pac.   695;   Estate  of  Donovan,   140   Cal.   390, 

73  Pac.  1081;  In  re  Darst's  Will,  34  Or.  58,  54  Pac.  947.  The  in- 
fluence must  be  used  directly  to  procure  the  will,  and  must  amount 
to  coercion  destroying  the  free  agency  of  the  testator  at  the  time 
of  the  execution  of  the  instrument:  Estate  of  Carpenter,  94  Cal.  406, 
29  Pac.  1101;  Estate  of  Motz,  136  Cal.  558,  69  Pae.  294;  Estate  of 
Keegan,  139  Cal.  123,  72  Pac.  828;  Goodwin  v.  Goodwin,  59  Cal.  561; 
Hurley  v.  O'Brien,  34  Or.  58,  54  Pac.  947;  Estate  of  Holman,  42  Or. 
345,  70  Pac.  908;  Waddington  v.  Busby,  45  N.  J.  Eq.  173,  14  Am.  St. 
Eep.  706,  16  Atl.  690. 

When  a  Will  is  Contested  on  the  Ground  of  Undue  Influence,  the 
burden  of  proof  is  generally  on  the  contestant:  Estate  of  Motz,  136 
Cal.  558,  69  Pac.  294;   Estate  of  Latour,  140  Cal.  414,  73  Pac.   1070, 

74  Pac.  441;  Dausman  v.  Eankin,  189  Mo.  677,  107  Am.  St.  Eep. 
391,  88  S.  W.  696;  note  to  Eichniond's  Appeal,  21  Am.  St.  Eep.  94- 
104.  See,  however.  Estate  of  Holman,  42  Or.  345,  70  Pac.  908.  Such 
influence  cannot  be  inferred  merely  from  opportunity  and  motive: 
Herwick  v.  Langford,  108  Cal.  608,  41  Pac.  701;  Estate  of  Nelson, 
132  Cal.  182,  64  Pac.  294;  Estate  of  Black,  132  Cal.  392,  64  Pac. 
695;  Estate  of  Donovan,  140  Cal.  390,  73  Pac.  1081;  Estate  of  Shell, 
28  Colo.  167,  89  Am.  St.  Eep.  181,  63  Pac.  413,  53  L.  E.  A.  387; 
Hubbard  v.  Hubbard,  7  Or.  42.  But  while  undue  influence  is  not 
presumed,  still,  like  fraud,  it  rarely  is  susceptible  of  proof  by  direct 
and  positive  evidence.  Hence  it  is  that  courts  are  liberal  in  allow- 
ing a  wide  range  of  investigation,  and  permitting  the  introduction 
in  evidence  of  all  facts  and  circumstances,  even  though  of  slight 
significance  in  themselves,  which  tend  to  throw  light  upon  the  is- 
sue: Clough  V.  Clough,  10  Colo.  App.  433,  51  Pac.  513;  Blackman 
v.  Edsall,  17  Colo.  App.  429,  68  Pac.  790;  Estate  of  Shell,  28  Colo. 
167,  89  Am.  St.  Eep.  181,  63  Pac.  413,  53  L.  E.  A.  387;  Dausman 
V.  Eankin,  189  Mo.  677,  107  Am.  St.  Eep.  391,  88  S.  W.  696.  How- 
ever, although  circumstantial  evidence  may  be  suflieient,  it  must 
amount  to  proof;  and  it  has  the  force  of  proof  only  when  circum- 
stances are  proved  which  are  inconsistent  with  the  claim  that  the 
will  was  the  spontaneous  act  of  the  testator:    Estate   of  McDevitt, 


252  Coffey's  Probate  Decisions,  Vol.  1. 

95  Cal.  17,  30  Pac.  101;  Estate  of  Calkins,  112  Cal.  296,  44  Pac. 
577. 

"The  question  of  undue  influence  is  one  of  peculiar  character;  it 
does  not  arise  until  after  the  death  of  the  one  who  alone  fully 
knows  the  influences  which  have  produced  the  instrument;  it  does 
not  touch  the  outward  act,  the  form  of  the  instrument,  the  signa- 
ture, the  acknowledgment;    it  enters   the  shadowy  land  of  the  mind 

in   search   of   its   condition   and   processes This   opens   a   broad 

field  of  inquiry  and  gives  to  such  a  contest  over  a  will  a  wider 
scope  of  investigation  than  exists  in  ordinary  litigation":  Mooney 
V.  Olsen,  22  Kan.  69,  approved  in  Estate  of  Miller  (Utah),  88  Pac. 
338.  For  cases  considering  the  sufiiciency  of  the  evidence  to  estab- 
lish undue  influence,  see  Estate  of  Welch,  6  Cal.  App.  44,  91  Pac. 
336;  Estate  of  Carriger,  104  Cal.  81,  37  Pac.  785;  Estate  of  Sil- 
vany,  127  Cal.  226,  59  Pac.  571;  Estate  of  Kendrick,  130  Cal.  360, 
62  Pac.  605;  Estate  of  Tibbetts,  137  Cal.  123,  69  Pac.  978;  Estate 
of  Calef,  139  Cal.  676,  73  Pac.  539;  Estate  of  Morey,  147  Cal.  495, 
82  Pac.  57;  Ames  v.  Ames,  40  Or.  495,  67  Pac.  737;  Estate  of  Abel 
(Nev.),  93  Pac.  227. 


Estate  of  ELIZABETH  D.  TRAYLOR,  Deceased  (No.  2). 

[No.   4,705;     decided   April   18,    1887.] 

Will. — A  Bequest  of  "Ornaments"  is  in  this  case  construed  to 
embrace  jewelry  and  "jewels  in  general." 

Will. — A  Bequest  of  "Her  Wardrobe"  by  the  testatrix  is  held  in 
this  case  not  to  include  her  ' '  ornaments. ' ' 

J.  F.  Swift,  for  executors. 

Wm.  Thomas,  for  Louise  E.  Matthews,  legatee. 

Selden  S.  Wright,  for  certain  absent  devisees  and  legatees. 

D.  Wm.  Douthitt,  for  heirs  at  law. 

J.  C.  Bates,  of  counsel  with  Douthitt,  for  heirs. 

COFFEY,  J.  Elizabeth  D.  Traylor  died,  leaving  a  will, 
duly  admitted  to  probate  in  this  court,  November  10,  1885. 
in  which  (inter  alia)  she  made  a  bequest  in  terms  as  follows: 

"To  my  niece,  Louise  E.  Matthews,  of  this  city,  I  give  ten 
thousand  dollars,  my  piano,  sewing  machine,  finger  rings 
(save  the  diamond  ring  I  habitually  wear),  and  so  many  of 


Estate  of  Traylor.  253 

my  books,  pictures  and  ornaments  (not  otherwise  bequeathed 
specifically)  as  she  shall  choose  to  take.  I  also  charge  my 
executors,  hereinafter  named,  to  purchase,  or  otherwise  pro- 
vide for  said  Louise  E.  Matthews,  a  house,  such  as  in  their 
judgment  shall  best  befit  her  condition  in  life,  and  to  permit 
her  to  furnish  the  same  from  the  furniture  of  my  home." 
In  a  codicil  admitted  to  probate  at  the  same  time,  she  pro- 
vides that: 

"Mrs.  Margaret  A.  Wilson  shall  have  so  much  and  so 
many  articles  of  my  wardrobe  as  she  shall  care  to  take." 

The  question  presented  is,  "What  passes    to    the    legatees 
under  the  terms  "ornaments"  and  "wardrobe"? 
1.  What  are  "ornaments"? 

"The  words  of  a  will  are  to  be  taken  in  their  ordinary 
and  grammatical  sense,  unless  a  clear  intention  to  use  them 
in  another  sense  can  be  collected,  and  that  other  can  be  ascer- 
tained": Civ.  Code,  sec.  1324. 

"In  case  of  uncertainty  arising  upon  the  face  of  a 
will,  ....  the  testator's  intention  is  to  be  ascertained  from 
the  words  of  the  will,  taking  into  view  the  circumstances  under 
which  it  was  made,  exclusive  of  oral  declarations ' ' :  Civ. 
Code,   sec.    1318. 

We  must,  in  such  case,  take  the  will,  holding  it  "by  the 
four  corners,"  and  read  it  in  the  light  of  the  circumstances 
surrounding  its  execution. 

The  word  "ornaments"  is  of  Latin  derivation,  and,  going 
to  the  source  for  a  definition,  we  find  in  Andrews'  Latin- 
English  Lexicon : 

"Ornamentum,  n.  (1)  Apparatus,  accoutrement,  equip- 
ment, furniture,  trappings,  etc. ;  ceterae  copiae.  orna- 
menta,  praesidia,  Cic.  Cat.  2,  11,  etc.  (2)  An  ornamental 
equipment,  ornament,  decoration,  embellishment,  jewel, 
trinket;  pecuniam,  omniaque  ornamenta  ex  fano  herculis 
in  oppidum  cartuUt,  jewels,  Caes.  B.  C.  2,  18;  quae 
(nrhs.  praesidio  et  ornamento  est  civitati,  Caes.  B.  C.  7, 
15 ;  ipse  ornamenta  a  chorago  haec  sumpsit,  i.  e.,  a  dress, 
costume,  Plant,  Trin.  4,  2,  16,  etc. ;  ornamenta  trium- 
pJiaiia  constdaria,  the  insignia  of  triumphing  generals, 
etc." 


254  Coffey's  Probate  Decisions,  Vol.  1. 

"Worcester  defines: 
"Ornament.     (1)   Embellishment;    decoration;    that    which 
adorns  or  beautifies. 

'^Illustration:  I  hold  every  man  a  debtor  to  his  profession, 
from  the  which,  as  men  of  course  do  seek  to  receive  coun- 
tenance and  profit,  so  ought  they  of  duty  to  endeavor  them- 
selves, by  way  of  amends,  to  be  a  help  and  ornament  there- 
unto. — Bacon. 

"(2)    [Fine  Arts.]   Any  accessory  part  of  a  work  which 
has  the  merit  of  adding  to  its  beauty  or  effect. 
" Illnstration:  Pedestals,  pediments,  draperies,  fringes,  gar- 
lands, vases,  cameos,  utensils    of    elegant    and    picturesque 
form,  are  the  usual  subject  of  ornament  in  painting. 

—Fairholt." 
Webster's  definition  is: 

' '  That  which  embellishes ;  that  which  adds  grace  or  beauty ; 
embellishment;  decoration. 

"The  ornament  of  a  meek  and  quiet  spirit,  which  is  in  the 
sight  of  God  of  great  price.  — 1  Peter,  Hi,  4. 

"Is  it  for  that  such  outward  ornament 
Was   lavished   on   their   sex?  — Milton. 

"Ornamental,  a.   [Lat.   as  if  ornamentalis  from  ornamen- 
tum. ]     Serving  to  ornament ;  giving  additional  beauty ; 
embellishing. 
"Some  think  it  most  orname^ital  to  wear  their  bracelets  on 

their  wrists ;  others  about  their  ankles.  — Browne." 

There  are  many  terms  of  frequent  occurrence  in  legacies, 
in  regard  to  which  there  have  been  almost  an  indefinite 
number  of  decisions;  but  cases  generally  depend  so  much 
upon  their  peculiar  circumstances,  and  the  accompanying 
context,  that  one  can  afford  very  slight  aid  toward  the  deter- 
mination of  another  not  precisely  similar.  Thus,  the  word 
"jewels"  is  often  brought  under  discussion,  as  in  Attorney 
General  v.  Harley,  5  Russ.  173,  where  the  testatrix  directed 
all  her  jewels  to  be  sold,  except  certain  rings,  and  her  neck- 
laces of  every  description,  pearls,  garnets,  carnelians  and 
watches,  which  she  gave  specifically;  and  it  was  held  that  a 
diamond  necklace  and  cross  came  under  the   direction   for 


Estate  of  Traylor.  255 

sale,   and  the  pearl  necklace  passed  under  the  specific  be- 
quest: 2  Redfield  on  Wills,  *123,  *124,  sec.  13. 

Webster  defines: 
"Jewel,  n.     1.  An  ornament  of  dress  in  which  the  precious 
stones  form  a  principal  part. 
"Plate  of  rare  device, 
And  jewels  of  rich  and  exquisite  form.      — Shakespeare. 

"Sweet  are  the  uses  of  adversity, 
Which,  like  the  toad,  ugly  and  venomous. 
Wears  yet  a  precious  jewel  in  his  head.  — Ibidem. 

"2.  A  precious  stone;  a  gem." 

From  a  careful  study  of  the  will  and  codicil,  and  from  an 
elaborate  examination  of  the  authorities  cited  by  counsel,  I 
have  come  to  the  conclusion  that  the  contention  of  the  attor- 
ney for  the  heirs  at  law  (that  the  word  "ornaments"  in  the 
bequest  "does  not  apply  to  jewelry,"  and  is  not  used  in  that 
sense)  is  not  sustainable;  and  that,  applying  the  canons  of 
construction  to  this  instrument,  the  court  must,  and  it  does, 
conclude  that  jewelry,  "jewels  in  general,"  are  within  the 
meaning  of  the  clause  "ornament  (not  otherwise  bequeathed 
specifically)  as  she  shall  choose  to  take." 

2.  The  second  point  presented  for  construction  is :  What 
is  included  in  the  word  "wardrobe,"  in  the  bequest  to  ]\Irs. 
Margaret  A.  Wilson? 

Counsel  for  this  legatee  argues  strenuously  that  "ward- 
robe" is  a  general  term  and  includes  "ornaments."  Among 
the  authorities  relied  upon  by  the  ingenious  and  able  counsel 
was  Thomas  Carlyle,  not  generally  recognized  in  controver- 
sies of  this  character,  but  entitled  to  respect  for  his  skill  and 
exactitude  in  the  use  of  words.  The  counsel  cited  Carlyle 's 
Sartor  Resartus,  and  I  find  on  pages  25-27  (of  the  People's 
Edition,  London,  Chapman  &  Hall,  see  in  the  [San  Francisco] 
Law  Library)  reference  to  Herr  Teuf elsdroch 's  dissertation 
on  "Clothes,"  beginning  with  the  remark: 

"The  first  purpose  of  clothes  was  not  warmth  or  decency, 
but  ornament." 


256  Coffey's  Probate  Decisions,  Vol.  1. 

Webster  defines  wardrobe  to  be: 

"1.  A  room  or  apartment  where  clothes  are  kept,  or  wear- 
ing apparel  is  stored ;  a  portable  closet  for  hanging  up  clothes. 

"2.  Wearing  apparel  in  general;  articles  of  dress  or  decora- 
tion." 

In  Gooch  V.  Gooch,  33  Me.  535,  it  was  decided  that  a 
watch,  which  the  testator  had  been  in  the  habit  of  carrying 
with  his  person,  did  not  pass  by  a  bequest  of  his  wearing 
apparel.  We  see  that,  according  to  Webster,  "wardrobe"  is 
"wearing  apparel  in  general,"  so  that  the  Maine  case  is  in 
point.  As  the  reasoning  of  the  court  in  Gooch  v.  Gooch  is 
applicable,  we  shall  appropriate  it  to  the  present  purpose. 
Ihe  judge,  in  delivering  his  decision,  said  that  if  the  watch 
belonged  to  the  plaintiff  it  must  have  been  given  by  being 
included  in  the  words  "wearing  apparel."  It  appears  that 
the  testator  purchased  the  watch  a  few  years  before  his  death, 
and  generally  used  it  by  carrying  it  upon  his  person.  Words 
used  in  wills  are  to  be  taken  in  their  common  and  ordinary 
sense.  The  ordinary  meaning  of  wearing  apparel  is  vesture, 
garments,  dress;  that  which  is  worn  by  or  appropriated  to 
the  person.  Ornaments  may  be  so  connected  and  used  with 
the  wearing  apparel  as  to  belong  to  it.  There  are  implements, 
such  as  pencils  and  penknives,  carried  about  the  person  but 
not  connected  with  the  wearing  apparel.  These  are  not  to 
be  considered  as  clothing.  To  which  class  does  a  watch 
belong?  It  may  not  properly  be  called  an  implement,  for 
it  is  used  merely  to  look  at.  Neither  is  it  used  as  clothing 
or  vesture  (wearing  apparel  or  "wardrobe").  The  .judge 
deduced  the  conclusion  that  the  watch  did  not  pass  under  the 
phrase  "wearing  apparel." 

If  the  context  of  the  will  of  Mrs.  Traylor  did  not  show 
clearly  that  she  intended  a  limitation  or  restriction  of  her 
bequest  to  articles  of  bodily  vesture,  the  authorities  cited 
would  render  the  conclusion  inevitable,  but  the  terms  of  the 
will,  in  this  instance  at  least,  are  plain  enough  to  exclude 
"ornaments"  from  the  bequest  of  the  "wardrobe." 


The  Principal  Case  was  Affirmed  by  the  supreme  court  in  7.5  Cal. 
189,  16  Pac.  774. 


Estate  of  McLaughlin  (No.  2).  257 


Estate  of  CHARLES  McLAUGHLIN,  Deceased   (No.  2). 

[No.   3,061;    decided   April   .5,   3  887.] 

Probate  Court — Jurisdiction. — The  Superior  Court,  sittiag  in  pro- 
bate, cannot  exercise  other  than  purely  probate  jurisdiction;  its  ju- 
risdiction, as  succeeding  the  powers  of  the  former  probate  court,  is 
not   enlarged. 

Revocation  of  Probate  Because  Obtained  by  Fraud. — The  superior 
court,  sitting  in  probate,  has  no  jurisdiction  to  revoke  the  probate 
of  a  will  because  procured  by  fraud  or  artifice;  the  remedy  of  the 
party   aggrieved   is   by   independent   suit   in   equity. 

Charles  McLaughlin  died  in  San  Francisco,  on  December 
13,  1883,  leaving  a  will,  bearing  date  February  8,  1866,  with 
a  codicil  executed  December  22,  1869. 

The  operative  portions  of  the  will  and  codicil  made  Kate 
D.  McLaughlin,  wife  of  the  testator,  his  sole  devisee,  legatee 
and  executrix. 

The  heirs  of  the  decedent  were  his  widow,  above  named; 
a  brother,  named  Michael  McLaughlin;  a  niece,  named  Mary 
Grace  McLaughlin,  and  two  sisters,  named  respectively  Ellen 
J.  Hogan  and  Arabella  Hinkle. 

On  January  9,  188-4,  the  will  was  filed,  together  with  a 
petition  for  its  probate  and  the  appointment  of  Mrs.  Kate 
D.  McLaughlin  as  executrix.  Within  due  time,  the  above- 
named  heirs  (with  the  exception  of  the  widow,  the  petitioner) 
filed  written  grounds  of  opposition  to  the  will  and  codicil, 
and  to  their  probate,  contesting  the  same. 

Thereafter,  and  before  the  sixteenth  day  of  June,  1884,  the 
opposition  on  the  part  of  said  heirs,  was  v/ithdrawn  by 
them,  and  their  contest  dismissed ;  and  on  the  last-named  day 
the  will  and  codicil  were  admitted  to  probate,  and  the  peti- 
tioning widow  appointed  executrix. 

On  June  15,  1885,  two  of  the  heirs,  Arabella  Iliukle  and 
Ellen  J.  Hogan  filed  a  petition  for  the  revocation  of  the 
probate. 

On  March  16,  1886,  the  executrix  filed  her  answer  thereto, 
and  on  September  18,  1886,  the  matter  came  on  for  hearing. 

Prob.  Dec,  Vol.  I — 17 


258  Coffey's  Probate  Decisions,  Vol.  1. 

It  was  continued  from  time  to  time  until  October  6,  1886, 
when  the  executrix  moved  for  judgment  on  the  pleadings. 
This  motion  was  met  by  a  counter-motion  on  the  part  of  the 
contesting  heirs,  for  leave  to  file  an  amended  petition.  The 
latter  motion  was  granted  and  the  former  denied,  and  on  said 
day  the  amended  petition  was  filed. 

On  October  26,  1886,  the  executrix  filed  her  notice  of  motion 
to  strike  out  certain  portions  of  the  amended  petition,  specified 
in  the  opinion  of  the  court  below.  The  motion  was  thereafter 
argued  and  submitted  to  the  court,  and  granted  on  April  6, 
1887. 

The  matter  sought  to  be  stricken  out,  and  stricken  out — 
was  in  substance  to  the  following  effect: 

It  was  alleged  that  the  contestants  and  the  other  heirs 
(excepting  the  widow)  had  filed  their  contest  to  the  will 
and  codicil,  and  to  their  probate,  in  due  time,  as  hereinabove 
stated. 

That  the  executrix  filed  her  answer  to  the  contest,  and 
a  trial  by  jury  had  been  demanded,  and  the  widow  had 
been  appointed  special  administratrix  until  the  petition  for 
probate  should  be  determined. 

That  certain  real  estate,  of  the  value  of  about  $200,000, 
owned  by  the  decedent,  was,  at  the  time  of  his  death,  held 
in  secret  trust  by  Tully  R.  Wise,  his  attorney  and  the  attor- 
ney for  the  executrix ;  and  that  at  said  time  certain  personal 
property  of  the  decedent,  of  the  value  of  about  $800,000, 
was  held  in  trust  by  his  widow,  and  that  this  personal  prop- 
erty, as  also  all  books  of  account,  stocks,  bonds,  etc.,  of  the 
decedent,  passed  into  the  possession  of  the  widow  at  the 
time  of  decedent's  death,  and  remained  in  her  exclusive  con- 
trol until  the  filing  of  the  inventory  on  May  11,  1885. 

That  the  petition  for  probate  alleged  the  value  of  the 
estate  to  be  $1,000,000,  while  the  widow  knew  it  to  be  of  far 
greater  value ;  and  that  she  has  continuously  and  persistently 
concealed  its  true  value  from  the  contestants  and  the  court, 
and  that  contestants  have  had  no  knowledge  or  means  of 
knowledge  as  to  its  value,  except  such  as  the  executrix  fur- 
nished them. 


Estate  of  McLaughlin  (No.  2) .  259 

That  while  the  contest  was  pending,  the  executrix  made 
overtures  to  contestants  and  set  on  foot  negotiations  to 
purchase  and  secure  their  rights  and  interests  in  the  estate, 
as  the  heirs  of  deceased. 

That  while  such  negotiations  were  pending,  and  for  the 
purpose  of  acquiring  accurate  information  as  to  the  value  of 
the  estate,  so  as  to  make  a  just  and  intelligible  sale  of  their 
interests,  contestants  requested  the  executrix  to  furnish  them 
with  a  statement  in  writing  of  the  assets  and  liabilities  of 
the  estate. 

That  she  furnished  them  a  statement  showing  the  value 
of  the  estate,  over  its  liabilities,  to  be  about  $240,000,  a  copy 
of  which  is  attached  to  the  amended  petition  and  made  part 
thereof,   marked   Exhibit   "A." 

That  the  executrix  represented  this  to  be  a  true  and 
correct  exhibit  of  the  actual  condition  of  the  estate,  and 
that  she  further  caused  it  to  be  represented  to  contestants 
that  the  estate  is  not  large,  and  is  involved  in  litigation, 
and  that  the  litigation  would  consume  nearly  the  whole  estate, 
and  in  the  end  it  would  be  worth  little  or  nothing,  and  that 
$23,000  was  the  fair  and  reasonable  value  of  the  interest 
of  each  of  the  contestants  as  such  heirs. 

That  the  contestant,  Ellen  J.  Hogan,  at  that  time  resided 
in  Illinois  and  was  never  in  California,  and  was  sixty-three 
years  of  age ;  had  no  business  experience,  and  was  ignorant 
and  illiterate,  being  unable  to  read  or  write,  and  that  con- 
testants were  wholly  unacquainted  with  the  character  or 
value  or  extent  of  the  estate. 

That  they  relied  upon  the  information  given  them  by  the 
executrix,  and  so  relying  and  supposing  that  she  had  made 
a  full  and  perfect  disclosure  of  the  property  of  the  estate, 
and  had  concealed  nothing,  and  induced  thereto  by  her  state- 
ments and  representations,  contestants  consented  to  sell  the 
whole  of  their  interest  in  the  estate  to  the  widow  for  $23,000 
each,  and  to  withdraw  and  dismiss  their  contests  to  the 
probate  of  the  will  and  that  without  reliance  upon  such 
statements  they  would  not  have  done  so;  and  that  accordingly 
they  executed  a  conveyance  of  their  interests  and  dismissed 
their  contests. 


260  Coffey's  Probate  Decisions,  Vol.  1. 

That  thereafter,  the  executrix  returned  her  inventory, 
and  procured  the  court,  by  some  means,  to  appoint  as  two 
of  the  appraisers  two  persons  who  were  in  her  employ. 

That  on  the  eleventh  day  of  May,  1885,  the  inventory  and 
appraisement  was  filed;  that  the  estate  was  appraised  at 
$2,476,162.72  by  said  appraisers. 

That  the  newspapers  of  this  city  and  county  published  the 
appraised  value  of  the  estate,  and  therefrom  contestants  for 
the  first  time  learned  that  the  estate  was  worth  more  than 
$2,000,000  over  and  above  what  the  executrix  had  repre- 
sented its  value  to  be. 

That  upon  examination  of  the  inventory,  contestants 
learned  for  the  first  time  of  the  large  and  valuable  por- 
tions of  the  estate  held  in  trust  by  said  Tully  R.  Wise  and 
by  said  widow,  and  that  said  two  appraisers  were  her  em- 
ployees. 

That  the  inventory  does  not  contain  all  the  property  of 
the  estate,  and  the  appraisement  is  far  below  its  actual 
value,  and  that  its  real  value  is  upward  of  $4,000,000. 

The  last  paragraph  sought  to  be  stricken  out  concludes : 

"By  reason  of  the  foregoing  facts,  it  is  manifest  that  the 
foregoing  conveyances  from  these  petitioners  to  Kate  D.  Mc- 
Laughlin, wherein  and  whereby  they  conveyed  to  said  Kate 
D.  McLaughlin  their  interests  in  the  estate  of  said  Charles 
McLaughlin,  were  all  procurefl  by  the  fraud,  imposition  and 
deceit  of  said  Kate  D.  McLaughlin,  and  that  by  reason 
thereof  said  conveyances  are,  as  to  these  petitioners,  in 
equity,  null  and  void." 

S.  M.  Wilson,  L.  D.  McKisick,  for  motion. 

D.  M.  Delmas,  J.  B.  Mhoon  and  Flournoy  &  Mhoon,  con- 
tra. 

COFFEY,  J.  This  is  a  motion  to  strike  out  certain  por- 
tions of  the  amended  petition  of  Arabella  Hinkle  and  Ellen 
J.  Hogan  to  revoke  the  probate  of  the  will  of  Charles  Mc- 
Laughlin, deceased.  The  parts  of  the  petition  which  it  is 
proposed  to  strike  out  are  all  of  paragraphs  6,  7,  8,  9,  ex- 
cept lines  20  to  27  inclusive,  on  the  seventh  page  of  the  peti- 
tion, and  all  of  paragraphs  10  and  11,  also  all  of  the  paper 


Estate  of  McLaughlin  (No.  2).  261 

marked  Exhibit  "A,"  and   annexed  to  said  amended  peti- 
tion and  made  a  part  thereof. 

If  this  motion  should  prevail,  the  petition  will  then  con- 
tain allegations  (1)  of  the  time  and  place  of  the  death  of 
Charles  ]\IcLaughlin ;  (2)  of  his  residence  at  the  time  of 
his  death;  (3)  the  persons  interested  iii  his  estate;  (4)  the 
value  of  the  property  left  by  him;  (5)  the  filing  of  the 
paper  purporting  to  be  a  will  with  codicil,  and  of  a  petition 
for  the  probate  thereof,  and  for  the  appointmnet  of  the 
proponent  as  executrix;  (6)  the  admission  of  said  paper 
to  probate,  and  the  appointment  of  the  proponent  as  execu- 
trix, her  qualification  as  such  executrix,  and  that  she  con- 
tinues acting  as  such  executrix:  (7)  allegations  (paragraph 
12  of  amended  petition)  that  said  will  so  probated  was  not 
executed,  attested  and  published  as  required  by  law;  that  it 
was  not  an  olographic  will,  and  was  not  subscribed  at  the 
end  thereof  by  said  McLaughlin  in  the  presence  of  both  the 
attesting  witnesses  thereto ;  that  the  signature  of  the  said 
McLaughlin  was  not  acknowledged  to  said  witnesses  to  have 
been  made  by  him  or  by  his  authority;  that  the  attesting 
witnesses  did  not  sign  their  names  at  the  end  of  said  paper 
at  the  request  of  said  McLaughlin,  or  in  his  presence,  or  in 
the  presence  of  each  other,  or  at  all;  that  said  will  is  not 
the  last  will  of  said  Charles  McLaughlin;  that  said  will  was 
by  him  in  his  lifetime  revoked;  that  said  will  was  by  said 
McLaughlin,  in  his  lifetime,  torn,  canceled,  obliterated  and 
destroyed,  with  the  intent  and  for  the  purpose  of  revoking 
the  same;  that  said  will  was  never  published  by  said  Mc- 
Laughlin as  his  will;  that  said  will  so  filed  for  probate  on 
the  9th  of  January,  1884,  is  not  the  last  will  of  said  Mc- 
Laughlin ;  but  that  he,  many  years  subsequent  to  the  date  of 
said  paper,  to  wit,  on  the  12th  of  October,  1878,  made, 
executed  and  published  another  and  different  will,  where- 
by the  said  IMcLaughlin  revoked  and  annulled  the  said  paper 
presented  and  filed  on  the  9th  of  January,  1884,  by  said 
Kate  D.  McLaughlin. 

The  grounds  of  the  motion  nre  that  each  of  the  first 
above  enumerated  portions  of  the  amended  petition  are 
irrelevant  and  redundant  within  the  meaning  of  section  453 
of  the  Code  of  Civil  Procedure  of  the  state  of  California ; 


262  Coffey's  Probate  Decisions,  Vol.  1. 

and  on  the  further  ground,  that  said  portions  of  said 
amended  petition  are  wholly  immaterial  and  irrelevant  to 
the  proceedings  provided  for  in  sections  1327  and  1328  of 
the  Code  of  Civil  Procedure  of  this  state,  and  contrary  to 
the  same,  and  are  not  matters  of  probate,  or  within  the 
jurisdiction  of  this  court  sitting  as  a  court  of  probate. 

Section  1327,  Code  of  Civil  Procedure,  reads:  "When  a 
will  has  been  admitted  to  probate,  any  person  interested 
may,  at  any  time  within  one  year  after  such  probate,  con- 
test the  same  or  the  validity  of  the  will.  For  that  purpose 
he  must  file  in  the  court  in  which  the  will  was  proved  a 
petition  in  writing  containing  his  allegations  against  the 
validity  of  the  will,  or  against  the  sufficiency  of  the  proof, 
and  praying  that  the  probate  may  be  revoked." 

For  the  purpose  of  such  application  he  need  only  put  in 
issue  (1)  the  competency  of  the  decedent  to  make  a  last 
will  and  testament;  (2)  the  freedom  of  the  decedent  at  the 
time  of  the  execution  of  the  will  from  duress,  menace,  fraud 
or  undue  influence;  (3)  the  due  execution  and  attestation 
of  the  will  by  the  decedent,  or  subscribing  witnesses;  (4) 
any  other  question  substantially  affecting  the  validity  of  the 
will. 

This  court  sitting  in  probate  may  consider  only  the 
will  and  the  sufficiency  of  the  proofs  upon  its  probate.  It 
cannot  exercise  other  than  purely  probate  jurisdiction.  If 
the  judgment  or  order  was  obtained  by  the  employment  of 
frauds  or  artifices  such  as  would  justify  a  court  of  equity  in 
annulling  it,  the  remedy  of  the  party  aggrieved  is  by  in- 
dependent action  in  equity.  The  matter  has  passed  beyond 
the  jurisdiction  of  the  superior  court  as  a  court  of  probate: 
Dean  v.  Superior  Court,  63  Cal.  477. 

The  jurisdiction  of  the  superior  court,  as  succeeding  to 
the  powers  of  the  probate  court,  is  not  enlarged.  In  such 
cases  courts  of  equity  have  jurisdiction  to  afford  proper  re- 
lief; and,  if  it  be  true  that  the  probate  court  was  imposed 
upon,  and  induced  to  make  a  decree  which  it  would  not 
otherwise  have  done,  resort  must  be  had  to  a  court  of  equity 
for  relief:  Estate  of  Hudson,  63  Cal.  454. 

This  is  a  statutory  proceeding  for  a  specific  purpose;  it 
has  its  scope  and  limitations,  and  can  go  no  further.     The 


Estate  of  McLaughlin  (No.  2).  263 

jurisdiction  of  the  probate  judge,  relating  to  revocation  of 
probate,  is  wholly  statutory.  In  exercising  the  power,  he 
can  in  no  way  alter  or  disregard  the  provisions  of  the  stat- 
ute:  Pryer  v.  Clapp,  1  Dem.   (N.  Y.)   390. 

It  follows,  therefore,  that  all  the  parts  of  the  petition 
assailed  by  this  motion  should  be  struck  out  as  not  within 
the  jurisdiction  of  this  court  sitting  in  probate.  Motion 
granted. 


The  Conclusiveness  of  the  Probate  of  a  Will,  when  attacked  on 
the  ground  of  fraud,  is  a  question  that  recently  has  been  before 
the  supreme  court  of  California  in  Estate  of  Davis,  151  Cal.  318,  121 
Am.  St.  Eep.  105,  86  Pac.  183,  90  Pac.  711;  Tracy  v.  Muir,  151 
Cal.  363,  121  Am.  St.  Eep.   117,  90  Pac.  832. 

RELIEF  IN  EQUITY  FROM  THE  ORDERS  AND  DECREES  OF 

PROBATE  COURTS. 

The  Power  of  Courts  of  Equity  to   Grant  Relief  from  the   orders     ; 
and  decrees   of  probate  courts,  in   case  of  fraud  or   other  ground   of     ' 
equitable    jurisdiction,    has    often    been    recognized,    so    that    it    may     ! 
safely  be  affirmed  that  the  orders  and  decrees  of  courts  of  probate     i 
may,  as  a  rule,  be  relieved  from  by  independent  suits  in  equity  under     • 
the  same  circumstances,  to  the  same  extent,  and  subject  to  the  same 
limitations  as  relief  may  be  had  from  other  judicial  determinations:     . 
Shegogg  V.  Perkins,  34  Ark.  117;  Silva  v.  Santos,  138  Cal.  536,  94  Am.—^ 
St.  Rep.  45,  71  Pac.  703;    Gafford  v.  Dickinson,  37  Kan.  287,  15  Pac. 
175;    Grady  v.  Hughes,  80  Mich.  184,  44  N.  W.  1050;  Searles  v.  Scott, 
14  Smedes  &  M.  94;  Foute  v.  McDonald,  27  Miss.  610;  Froebrich  v. 
Lane,  45  Or.  634,  106  Am.  St.  Rep.  634,  76  Pac.  351.     Thus  equity  has 
jurisdiction  to  set  aside  orders  in  probate  procured  by  the  fraudulent 
suppression  of  the  decedent's  will:  Ewing  v.  Lamphere,  147  Mich.  659, 
118  Am.  St.  Rep.  563,  111  N.  W.  187. 

Decrees  Settling  Accounts. — The  most  familiar  application  of  the 
rule  just  stated  relates  to  orders  and  decrees  settling  the  accounts 
of  administrators,  executors,  and  guardians,  and  of  trustees  perform- 
ing analogous  duties.  These  settlements,  when  once  made  and  ap- 
proved by  courts  of  competent  jurisdiction,  have  the  force  of  res  judi- 
cata both  at  law  and  in  equity,  and  will  not  be  vacated  or  annulled 
by  courts  of  equity,  except  upon  the  establishment  of  some  well-rec- 
ognized ground  for  equitable  relief:  Alexander  v.  Alexander,  70  Ala. 
357.  The  temptation  to  fraud  is,  however,  not  less  in  these  cases 
than  in  others  coming  before  courts,  and  the  opportunity  for  exer- 
cising it  is  much  greater  than  in  litigation  where  all  of  the  parties 
are  generally  well  informed  both  respecting  the  facts  of  the  contro- 
versy and  the  legal  rights  attending  them,  and  furthermore,  arc  rep- 


264  Coffey's  Probate  Decisions,  Vol.  1. 

resented  by  counsel  attentive  in  safeguarding  their  interests.  So, 
though  there  is  no  fraud,  there  may  be  accident  or  mistake  such  as 
authorize  the  granting  of  relief  from  other  judicial  determinations. 
"The  courts  of  chancery  have  no  power  to  take  such  cases  out  of 
probate  courts,  for  the  purpose  of  proceeding  with  the  administration. 
But  their  powers  and  functions  to  relieve  against  fraud,  accident, 
mistake,  or  impending  irremediable  mischief  is  universal,  extending 
over  suitors  in  all  of  the  courts  and  over  the  decrees  in  those  courts  ob- 
tained by  fraud,  or  rendered  under  circumstances  which  render  it  in- 
equitable that  they  should  be  enforced.  Hence,  any  fraud  in  the 
settlements  of  administrators  or  executors  may  be  corrected":  Eein- 
hardt  v.  Gartrell,  33  Ark.  727;  Shegogg  v.  Perkins,  34  Ark.  117; 
Jones  v.  Graham,  36  Ark.  383;  Green  v.  Creighton,  10  Smedes  &  M. 
159,  48  Am.  Dec.  742;  Oldham  v.  Trimble,  15  Mo.  225;  Dingle  v.  Polliek, 
49  Mo.  App.  479;  Froebrich  v.  Lane,  45  Or.  13,  106  Am.  St.  Eep.  634, 
76  Pae.  351;  Bertha  Z.  &  M.  Co.  v.  Vaughan,  88  Fed.  566.  If  trustees 
under  a  will,  with  intent  to  defraud  the  person  benefited,  present  a  false 
account  and  secure  its  settlement  by  the  court,  they  are  guilty  of 
fraud  upon  the  court  extrinsic  to  the  case,  as  well  as  upon  the  bene- 
ficiary, and  if  he  has  no  knowledge  of  the  fraud  until  after  the  expir- 
ation of  the  time  for  moving  to  vacate  the  order  of  settlement 
or  for  appealing  therefrom,  he  may  maintain  a  suit  in  equity  to 
compel  the  trustees  to  pay  the  amount  of  which  he  has  been  de- 
frauded by  the  settlement:  Aldrich  v.  Barton,  138  Gal.  220,  94  Am. 
St.  Eep.  43,  71  Pac.  169.  The  same  principles  apply  to  a  decree  set- 
tling the  account  of  the  guardian  of  an  infant  or  incompetent  person, 
who,  through  fraud  or  mistake  has  failed  to  account  for  the  funds 
or  assets  of  his  ward:  Nelson  v.  Cowling,  77  Ark.  351,  113  Am.  St. 
Eep.  155,  91  S.  W.  773;  Willis  v.  Eice,  141  Ala.  168,  109  Am.  St. 
Eep.  26,  37  South.  507;  Silva  v.  Santos,  138  Cal.  536,  94  Am.  St. 
Eep.  45,  71  Pac.  703;  Anderson  v.  Anderson,  178  111.  160,  52  N. 
E.  1038;  Neylans  v.  Burge,  14  Smedes  &  M.  201.  This  rule  is  not 
abrogated  by  statutes  purporting  to  make  decrees  and  orders  of 
courts  of  probate  conclusive.  Such  statutes  merely  place  the  de- 
termination of  those  courts  on  the  same  footing  as  the  determin- 
ations of  other  judicial  tribunals  without  interfering  with  the 
power  of  equity,  in  proper  cases,  to  relieve  from  them:  Black  v. 
Whitall,  9  N.  J.  Eq.  572,  59  Am.  Dec.  423. 

In  some  of  the  states  statutes  have  been  enacted  under  which  the 
authority  of  equity  is  clearly  expressed  and  which  remove  any  doubts 
that  otherwise  might  exist  upon  this  subject.  Thus,  in  Iowa,  a  sec- 
tion of  the  code  provides  that  mistakes  in  the  final  settlement  of 
accounts  may  be  corrected  after  the  settlement  "by  equitable  pro- 
ceedings and  showing  such  grounds  as  would  justify  the  interference 
of  the  court":  Tucker  v.  Stewart,  113  Iowa,  449,  86  N.  W.  371. 
These  statutes  authorize  relief  to  be  granted  against  an  order  settling 
an   account,  and  so   does  a   statute   authorizing  judgments   to   be   va- 


Estate  of  McLaughlin  (No.  2).  265 

cated  for  fraud  practiced  by  the  successful  parties  in  obtaining 
them:  Eoll  v.  Stum,  20  Ky.  Law  Rep.  661,  46  S.  W.  223.  But  these 
statutes  are  not  essential  to  the  jurisdiction  of  the  court.  Thus, 
where,  as  in  California,  in  which  state  no  special  statute  existed 
upon  the  subject  and  where  its  courts  of  probate  were  of  exclusive 
jurisdiction,  a  bill  was  filed  to  compel  an  accounting  for  certain 
property,  notwithstanding  its  omission  from  the  accounts  of  an  ad- 
ministrator, which  had  been  settled  by  the  court.  The  supreme  court 
of  the  United  States,  reversing  the  judgment  of  the  trial  court,  said: 
"It  is  well  established  that  a  settlement  of  an  administrator's  ac- 
count, by  the  decree  of  a  probate  court,  does  not  conclude  as  to 
property  accidentally  or  fraudulently  withheld  from  the  account.  If 
the  property  be  omitted  by  mistake,  or  be  subsequently  discovered, 
a  court  of  equity  may  exercise  its  jurisdiction  in  the  premises,  and 
take  such  action  as  justice  to  the  heirs  of  the  deceased  or  to  the 
creditors  of  the  estate  may  require,  even  if  the  probate  court  might, 
in  such  cases,  open  its  decrees  and  administer  upon  the  property 
omitted.  And  a  fraudulent  concealment  of  property,  or  a  fraudulent 
disposition  of  it,  is  a  general  and  always  existing  ground  for  the  in- 
terposition of  equity":  Grifiith  v.  Godey,  113  U.  S.  89,  5  Sup.  Ct. 
383,  28  L.  Ed.  934. 

Orders  Directing  the  Sale  of  the  Property  of  a  decedent  or  incom- 
petent, and  confirming  such  sales  when  made,  are,  not  less  than 
those  of  other  judicial  tribunals,  subject  to  attack  in  courts  of  equity, 
not,  indeed,  for  the  purpose  of  showing  them  to  be  erroneus  or  irreg- 
ular, but  of  proving  that  they  were  obtained  under  such  circum- 
stances that  relief  ought  to  be  granted  against  them  to  the  extent 
of  setting  aside  the  sales,  or  requiring  persons  acquiring  title  under 
them  to  hold  it  as  trustees,  or  to  otherwise  so  act  that  equity  shall 
not  be  offended:  Van  Horn  v.  Ford,  16  Iowa,  578;  Grant  v.  Lloyd, 
12  Smedes  &  M.  191;  Hull  v.  Voorhis,  45  Mo.  555;  Lander  v.  Abra- 
hamson,  34  Neb.  553,  52  N.  W.  571.  Where  suit  was  commenced  by 
creditors  of  a  decedent  to  set  aside  for  fraud  a  sale  of  his  property 
authorized  and  confirmed  by  a  probate  court  of  Louisiana,  the  su- 
preme court  of  the  United  States  said:  "The  administration  of 
General  Morgan 's  succession  undoubtedly  belonged  to  the  probate 
court  of  the  parish  of  Carroll,  and,  in  a  general  sense,  it  is  true  that 
the  decisions  of  that  court  in  the  matter  of  the  succession  are  con- 
clusive and  binding,  especially  upon  those  who  were  parties.  But 
this  is  not  universally  true.  The  most  solemn  transactions  and  judg- 
ments may,  at  the  instance  of  the  parties,  ba  set  aside  or  rendered 
inoperative  for  fraud.  The  fact  of  being  a  party  does  not  estop  a 
person  from  obtaining  in  a  court  of  equity  relief  against  fraud.  It 
is  generally  parties  that  are  the  victims  of  fraud,  whether  committed, 
in  pais  or  in  or  by  means  of  judicial  proceedings.  In  such  cases  the 
court  does  not  act  as  a  court  of  review,  nor  docs  it  inquire  into 
any  irregularities   or  errors  in  proceedings   in  another  court;    but   it 


266  Coffey's  Probate  Decisions,  Vol.  1. 

will  scrutinize  the  conduct  of  the  parties,  and  if  it  finds  that  they 
have  been  guilty  of  fraud  in  obtaining  a  judgment  or  decree,  it  will 
deprive  them  of  the  benefit  of  it,  and  of  any  inequitable  advantage 
which  they  have  derived  under  it":  Johnson  v.  Waters,  111  U.  S. 
640,  4  Sup.  Ct.  619,  27  L.  Ed.  547. 

Decrees  of  Distribution. — In  many  of  the  states,  courts  whose 
orders  and  decrees  we  are  here  considering  are  authorized  and  re- 
quired, after  the  settlement  of  the  estate  of  a  decedent,  to  make, 
a  decree  distributing  the  property  remaining  undisposed  of  among 
the  heirs,  devisees,  and  other  parties  entitled  thereto,  and  the  stat- 
utes conferring  this  authority  impart  conclusive  effect  to  the  action 
of  the  court,  to  the  end  that  thereafter  there  shall  be  no  question 
remaining  respecting  the  persons  entitled  to  such  property.  As  in 
every  other  judicial  proceeding,  fraud  may  be  employed,  mistakes 
may  occur,  or  accidents  may  prevent  the  due  presentation  of  the 
claims  of  the  persons  entitled,  and  an  adjudication  may  result  which 
equity  will  not  allow  to  be  enforced.  It  may  declare  that  the  per- 
son in  whose  favor  a  decree  of  distribution  is,  or  his  successor  in 
title  with  notice,  holds  the  property  in  trust  for  an  heir  or  other 
person  to  whom  it  should  have  been  distributed  (Baker  v.  O'Eiordan, 
65  Cal.  368,  4  Pac.  232;  Sohler  v.  Sohler,  135  Cal.  323,  87  Am.  St. 
Eep.  98,  67  Pac.  282;  Maney  v.  Casserly,  134  Mich.  252,  96  N.  W. 
478),  or  in  some  jurisdictions  the  decree  of  distribution  may  be  set 
aside  so  far  as  inequitable:  Benson  v.  Anderson,  10  Utah,  135,  37 
Pac.  256;    Beem  v.  Kimberly,  72  Wis.  343,  39  N.  W.  542. 

f     Orders  Granting  Probate  of  Wills  and  Letters  of  Administration. — 

There    is    no    doubt    that    courts    of    equity    have    always    disclaimed 

/    jurisdiction  over  the  probate  of  wills  and  have  refused  to  cancel  or 

j     set  aside  such  probate,  though  assailed  on  the  ground  that  the  wills 

Lin  question  were  forgeries,  and  their  admission  to  probate  had  been 
procured  by  fraud  and  perjury:  Watson  v.  Bothwell,  11  Ala.  650; 
Ewell  V.  Tidwell,  20  Ark.  136;  State  v.  McGlynn,  20  Cal.  233,  81 
Am.  Dec.  118;  Langdon  v.  Blackburn,  109  Cal.  19,  41  Pac.  814;  Sharp 
V.  Sharp,  213  111.  332,  72  N.  E.  1058;  Hughey  v.  Sidwell's  Heirs,  18 
B.  Mon.  259;  Lyne  v.  Marcus,  1  Mo.  410,  13  Am,  Dec.  509;  Graland 
V.  Smith,  127  Mo.  583,  28  S.  W.  195,  29  S.  W.  836;  Loosemore  v. 
Smith,  12  Neb.  343,  11  N.  W.  493;  Post  v.  Mason,  91  N.  Y.  539, 
43  Am.  Eep.  689;  McDowall  v.  Peyton,  2  Desaus.  313;  Archer  v. 
Meadows,  33  Wis.  166;  Traver  v.  Traver,  9  Pet.  174,  9  L.  Ed,  91; 
Ellis  V.  Davis,  109  U.  S.  485,  3  Sup.  Ct.  327,  27  L.  Ed.  1006;  In 
re  Broderick's  Will,  21  Wall.  504,  22  L.  Ed.  599;  Allen  v.  McPherson, 
1  H.  L,  Cas.  191;  Kerrick  v.  Bransby,  1  Brown  P.  C.  588;  and 
the  same  rule  has  been  applied  to  grants  of  letters  of  administra- 
tion: Simmons  v.  Saul,  138  U.  S.  439,  11  Sup.  Ct.  369,  34  L.  Ed, 
1054. 

Such  proceedings  as  will  contests  cannot  be  inaugurated  in  courts 
of   equity;     the   jurisdiction    of   probate    courts   is    exclusive   in   such 


Estate  op  McLaughlin  (No.  2).  267 

matters:  Curtis  v.  Schell,  129  Cal.  208,  79  Am.  St.  Eep.  107,  61 
Pac.  951;  Langdon  v.  Blackburn,  109  Cal.  19,  41  Pae.  814;  Sohler 
V.  Sohler,  135  Cal.  323,  87  Am.  St.  Rep.  98,  67  Pac.  282;  Froebrich 
V.  Lane,  45  Or.  13,  106  Am.  St.  Eep.  634,  76  Pac.  351;  Benson  v. 
Anderson,  10  Utah,  135,  37  Pac.  256;  Carrau  v.  O'Calligan,  125  Fed. 
657,  60  C.  C.  A.  347. 

There  is  doubtless  much  in  the  opinions  in  these  cases  from  which 
the  inference  might  be  supported  that,  under  no  circumstances,  can 
any  relief  be  had  in  equity  from  an  order  admitting  a  will  to  pro- 
bate. It  must  be  remembered,  however,  that  every  ground  upon 
which  relief  in  equity  might  be  urged  is  also  available  in  the 
probate  court  in  opposition  to  the  probate  of  a  will,  and  that  in  most, 
If  not  all,  of  the  states  a  considerable  period  of  time  is  allowed  after 
such  probate  in  which  applications  for  its  revocation  may  be  made. 
In  nearly,  if  not  in  all,  of  the  cases  cited,  the  persons  seeking  re- 
lief were  guilty  of  laches  in  long  delaying  their  application  for  such 
relief,  or  in  failing  without  adequate  excuse  in  the  court  having 
jurisdiction  of  the  probate  of  the  will  to  take  advantage  of  the 
remedies  there  available  to  them.  Hence,  we  think  none  of  these 
cases  warrants  the  broad  proposition  that  in  no  event  can  relief 
in  equity  be  obtained  against  the  probate  of  a  will.  Of  course,  it 
may  be  conceded  that,  unless  specially  authorized  by  statutes,  a 
court  of  equity  cannot  directly  cancel  or  set  aside  such  probate. 
This,  however,  is  by  no  means  conclusive  of  the  question.  It  was, 
and  perhaps  still  is,  the  rule  that  a  court  of  equity  could  not  and 
would  not  attempt  to  set  aside  a  judgment  at  law.  This,  however 
did  not  prevent  it  from  granting  effective  relief  in  personam.  Re- 
lief of  this  character  would,  doubtless,  in  many  instances  j)ractically 
annul  the  probate  of  a  will,  or,  at  least,  prevent  its  inequitable  oper- 
ation. The  right  to  proceed  in  equity  against  the  probate  of  wills 
has  been  given  by  various  American  statutes  which  we  shall  not 
here  undertake  to  summarize:  Sharp  v.  Sharo,  213  111.  332,  72  N.  E. 
1058;  Bartlett  v.  Manor,  146  Ind.  621,  45  N.  E.  1060;  Pryer  v.  Howe, 
40  Hun,  383;  Ocobock  v.  Eells,  37  N.  Y.  App.  Div.  114,  55  N.  Y. 
Supp.  1118;  Dillard  v.  Dillard,  78  Va.  208;  Couch  v.  Eastham,  27 
W.  Va.  796,  55  Am.  Rep.  346.  Where,  upon  the  trial  of  an  issue 
devisavit  vel  non,  a  will  was  set  aside,  it  was  held  that  relief  might 
be  granted  in  equity  and  the  probate  of  a  will  reinstated  upon  proof 
of  fraudulent  combinations  between  the  proponents  and  the  con- 
testants:   Smith  v.  Harrison,  2  Heisk.  230. 

The  question  remains  whether,  though  the  probate  of  a  will  can- 
not be  set  aside  in  equity,  some  other  adequate  relief  niay  not  be 
there  obtained,  as  by  declaring  the  party  receiving  the  benefit  of  the 
will  to  be  a  trustee  holding  in  trust  for  those  who  have  been  de- 
frauded by  its  probate.  That  this  may  be  accomplished  has  been 
intimated  in  certain  English  and  American  cases:  Barnesly  v.  Powell, 
I  Ves.  Sr.   284;    Sohler   v.  Sohler,   135   Cal.  323,  87  Am.  St.   Rep.  98, 


268  Coffey's  Probate  Decisions,  Vol.  1. 

67  Pac.  282;  and  necessarily  determined  in  Smith  v.  Boyd,  127  Mich. 
417,  86  N.  W.  953.  The  bill  in  this  case  was  to  set  aside  certain 
codicils  to  a  will  on  the  ground  of  fraud,  and  for  an  accounting. 
A  demurrer  to  the  complaint  was  overruled,  and  the  defendants  ap- 
pealed. The  bill  stated  that  the  complainant  was  a  grandchild  of 
W.  M.,  deceased,  and  that  the  defendants  were  his  children  and 
grandchildren,  and  they,  with  the  complainant,  constituted  his  heirs 
at  law;  that  complainant's  mother  died  when  he  was  about  eight 
months  old,  and  that  at  the  age  of  seven  he  went  to  live  with 
his  grandfather,  with  whom  he  remained  until  the  death  of  the  lat- 
ter; that  the  grandfather,  when  complainant  was  five  years  of  age, 
made  a  will,  and  that  several  years  later,  and  when  the  grandfather 
was  in  feeble  health  and  of  unsound  mind,  he  was,  by  undue  in- 
fluence, fraud,  and  deceit,  induced  to  change  his  will  to  the  preju- 
dice of  the  complainant;  that  in  July,  1889,  the  grandfather  died, 
and  the  will  and  codicils  were  admitted  to  probate  on  the  petition  of 
one  of  the  defendants;  that  the  complainant  had  no  general  guardian; 
that  his  father  was  absent  from  the  state;  that  no  guardian  ad 
litem  was  appointed,  and  that  complainant  had  no  knowledge  of 
the  proceedings  in  the  probate  court.  The  defendants,  in  support 
of  their  demurrer,  insisted  that  the  proceeding  in  the  probate  court 
was  substantially  in  rem,  and  that  the  remedy  was  by  appeal.  The 
supreme  court  affirmed  the  judgment  overruling  the  demurrer  to  the 
bill  apparently  on  the  ground  that  the  complainant  was  without  any 
remedy  in  the  probate  court,  and  that  his  case  was  to  be  treated 
substantially  as  if  it  were  one  to  set  aside  the  settlement  of  an 
account  in  the  probate  court  when  obtained  by  fraud.  So  far  as 
the  opinion  of  the  court  shows,  there  was  no  consideration  by  it  of 
the  English  and  American  authorities  with  which  its  conclusions 
seemed  to  conflict. 

"  The  Limitations  upon  the  Right  to  Obtain  Relief  in  Equity  from 
orders    and    decrees    of    probate    courts    and    other    tribunals    exercis- 

I    ing  a  like  jurisdiction  is  the  same  as  when  relief  is  sought  from  judg- 

\  ments  at  law.  Equity  will  not  assert  a  mere  revisory  jurisdiction 
by  attempting  to  correct  or  relieve  from  mere  errors  or  irregulari- 
ties, there  being  otherwise  no  sufficient  ground  for  the  interposition 
of  equity:  Seals  v.  Weldon,  121  Ala.  319,  25  South.  1021;  Greely 
Burnham  G.  Co.  v.  Graves,  43  Ark.  171;  Dajy_X!_E£finiej_86_CaL_552j 

>    21  Am.  St.  Eep.  61,  25  Pac.  67;  Eatliff  v.  Magee,  165  Mo.  461,  65  S. 

/    W.  713;  Froebrich  v.  Lane,  45  Or.  13,  106  Am.  St.  Rep.  634,  76  Pac. 

''  351;  Gee  v.  Humphries,  28  S.  C.  606,  5  S.  E.  615;  Central  Nat.  Bank 
v.  Fitzgerald,  94  Fed.  16.  Nor  will  it  act  where  the  complainant 
still  has  an  adequate  remedy  in  the  courts  having  jurisdiction  of 
the  estate:  Hankins  v.  Layne,  48  Ark.  544,  3  S.  W.  821;  Ladd  v. 
j,  Nystol,  63  Kan.  23,  64  Pac.  985j]]nor  where  he  has  been  guilty  of 
laches,  either  in  not  presenting  his  claims  and  not  pursuing  his  rem- 
edy in   that  court,  or  in   not  seeking  his  remedy  in  equity  within   a 


Estate  OP  McLaughlin  (No.  2).  269 

reasonable  time  after  having  notice  of  his  rights  and  of  the  wrongs 
of  which   he   complains.     In   other  words,   he   must   always   aver   and 
prove   facts   which   excuse   his   not   appearing   and   protecting   his   in- 
terests   in    the    court    of    probate:    Moore    v.    Lesueur,    33    Ala.    237; 
Lyne's  Admr.   v.   Wann,   72   Ala.   43;    Boswell   v.   Townsend,   57   Ala. 
308;   Tynan  v.  Kerns,  119  Cal.  447,  51  Pac.  693;   Froebrich  v.  Lane, 
45   Or.   15,   106   Am.  St.   Rep.   634,   76   Pac.   351;    and  where   sufficient 
cause   exists   for   resorting   to   equity,   he   must   proceed   with   reason- 
able   diligence;    otherwise   relief   will   be   denied   him   because   of   his 
laches:    Hankins    v.    Layne,    48    Ark.    544,    3    S.    W.    821;    Tucker    v. 
Stewart  (Iowa),  86  N.  W.  371;  Duryea  v.  Granger's  Estate,  66  Mich. 
.393,  33  N.  W.  730;  Williams  v.  Petticrew,  62  Mo.  460;   Slaughter  v. 
Cannon,  94  N.  C.  189;  Handley  v.  Snodgrass,  9  Leigh,  484;   Hays  v. 
Freshwater,  47  W.  Va.  217,  34  S.  E.  831;   Eames  v.  Manly,  54  C.  C. 
A.  561,  117  Fed.  387.|_Furthermore,  if  fraud  is  relied  upon,  it  musf^ 
be   extrinsic   or  collateral  to  the   questions   examined   and   determined     \ 
in  the  adjudication  complained  of:    Gruwell  v.   Seyboldt,   82   Cal.   10,       \ 
22   Pac.   938;   In   re   Griffith,   84   Cal.    107,   23   Pac.   528,   24   Pac.   381;       j 
Hanley  v.  Hanley,  114  Cal.  690,  46  Pac.  736;   Mulcahey  v.  Dow,   131       ' 
Cal.  73,  63  Pac.  158;  Sohler  v.  Sohler,  135  Cal.  323,  87  Am.  St.  Rep.  98, 
67   Pac.   282.     The   strict   application   of   this   rule   must   prevent   the 
award  of  all  relief  in  equity,  for  such  relief  is  never  granted,  unless 
the   adjudication   complained   of   is   unjust,   and   the   only   method   by 
which  its  unjustness  can  be   established   is  by  re-examination  of  the 
issues   involved.     Thus,  where   an   executor  or   administrator  presents 
and   obtains   an    allowance   of   his   accounts,    and    relief   in    equity   is 
sought  therefrom,  it  must  always  be  alleged  and  proved  that  the  ac- 
count as  presented  and  allowed  is  unjust,  as  well   as  that  there  was 
some   fraud,   accident,   or   mistake   to   which   the   allowance   was   due, 
and  yet  all -the  cases  cited  in  the  second  paragraph  of  this  note  show 
that,  in  a  proper  ease,  relief  may  be  obtained,  though  it  must  neces- 
sarily involve  a  re-examination  of  the  question.     The  same  may  truly 
be  said  where  relief  is  sought  and  obtained  from  a  decree  of  distribu- 
tion or  an  order  directing  the  sale  of  property  of  a  minor  or  decedentj 
In  no  part  of  the  proceedings  in   probate  is  there   more  temptation 
to    fraud    or    more    opportunity    to    successfully    employ    it    than    in 
proceedings  to  set  aside  to  the  widow  property  to  which  she   claims 
to   be   entitled,   either   because   it   was   a   homestead   of   the   decedent 
selected  by  him  in  his  lifetime,  or  ought  to  be  selected  as  ht>r  home- 
stead   because   he   had  never  made  any  selection.     There  are   several 
cases   denying   relief   from   orders   setting  aside   a    homestead   on    the 
ground  that  the  fraud  complained  of  was  not  extrinsic,  and  that  the 
court    hence    could    not    proceed    without    the    re-examination    of    is- 
sues  already  tried   and   determined:    Fealey   v.   Fealey,    104   Cal.   355, 
43    Am.    St.   Eep.    Ill,    38    Pac.   49;    Wickersham    v.    Comerford,    104 
Cal,  494,  38  Pac.   101;  Hanley  v.  Hanley,   114  Cal.  690,  46  Pac.   736. 
The  case  last  cited  is  an  extreme  one,   and,  if  carried  to   its  logical 


270  Coffey's  Probate  Decisions,  Vol.  1. 

result,  should  prevent  relief  being  granted  in  nearly,  if  not  in  all, 
cases  where  fraud  is  practiced  in  probate  proceedings.  The  action 
was  brought  to  set  aside  a  decree  in  the  administration  of  the  es- 
tate of  Patrick  Hanley,  deceased,  by  which  certain  property  was  set 
aside  to  his  widow  as  a  homestead;  and  the  complaint,  among  other 
things,  alleged  that  the  premises  were  the  separate  property  of  the 
deceased,  that  his  widow  willfully,  falsely,  and  fraudulently  rep- 
resented to  the  court,  and  testified,  that  they  were  community  prop- 
erty;  and  also  falsely  represented  to  it  that  a  certain  declaration 
of  homestead  had  been  filed  on  the  premises  while  she  and  her  de- 
ceased husband  were  actually  residing  thereon;  and  it  was  further 
contended  that  the  complainants  had  no  notice  of  the  proceeding  to 
set  aside  the  homestead.  A  demurrer  to  tiie  complaint  was  sustained, 
on  the  ground  that  the  proceeding,  being  in  rem,  all  parties  inter- 
ested were  bound  by  it  without  personal  notice,  and  that  the  fraud 
alleged  was  not  extrinsic  or  collateral  to  the  matter  which  was  tried 
and  determined  by  the  court.  As  the  question  was  presented  upon 
demurrer,  there  was  no  suggestion  that  the  widow  testified  as  she 
did  through  any  mistake;  on  the  contrary,  the  demurrer  necessarily 
admitted  that  she  acted  willfully,  fraudulently,  and  falsely.  Pro- 
ceedings of  this  character  are  ordinarily  ex  parte,  and  we  do  not 
think  that  the  rule  to  which  we  refer  should  be  applied  to  them 
where  such  is  the  case.  As  those  who  are  adversely  interested  are 
not  present  in  court  and  usually  have  no  actual  knowledge  of  the 
proceeding,  it  ought  to  be  regarded  as  a  fraud,  entitling  them  to 
relief  when  one,  taking  advantage  of  their  absence,  willfully  misrep- 
resents facts  to  the  court,  though  the  facts  so  represented  involve 
the  merits  and  go  to  the  very  foundation  of  the  proceedings.  The 
case  of  Sohler  v.  Sohler,  135  Cal.  323,  87  Am.  St.  Kep.  98,  67  Pac. 
282,  though  it  does  not  profess  to  overrule  any  of  the  decisions  re- 
ferred to,  seems  to  be  necessarily  in  conflict  with  them,  unless  it  can 
be  said  that  the  principles  applicable  to  decrees  of  distribution  dif- 
fer from  those  applicable  to  orders  setting  apart  homesteads.  In 
the  case  last  cited  relief  was  obtained  from  a  decree  of  distribution, 
on  the  ground  that  a  widow  conspired  with  her  son,  who  was  not  the 
son  of  the  decedent,  to  procure  for  him  a  share  of  the  latter 's  prop- 
erty as  one  of  his  children,  filed  a  petition  naming  him  as  such,  and  ob- 
tained a  decree  in  accordance  therewith.  The  court  proceeded,  how- 
ever, partly  upon  the  ground  that  the  widow,  being  the  executrix 
of  the  decedent,  was  the  trustee  of  all  the  heirs  and  of  other  par- 
ties in  interest,  was  the  mother  and  natural  guardian  of  such  heirs, 
and  was  obligated  to  protect  their  legal  rights  and  see  that  the  legal 
claims   to   the   estate   were   properly  presented   to   the   probate    court. 


Estate  of  Scott.  271 

Estate  of  ANGELIA  R.  SCOTT,  Deceased. 

[No.    19,473;    decided    August    29,    1898.] 

Insanity  of  Testator — Evidence  and  Burden  of  Proof. — The  legal 
presumption  is  in  favor  of  the  sanity  of  a  testator,  and  the  burden 
of  proof  is  on  the  contestant  of  his  will  to  demonstrate  the  con- 
trary; and  if  the  contestant  prevails,  in  a  case  of  doubt,  it  must 
be  by  a  preponderance  of  proof,  and  the  number.  Character  and  in- 
telligence of  witnesses,  and  their  opportunity  for  observation,  should 
be  taken  into  account. 

Witnesses — Credibility  as  Affected  by  Station  in  Life. — Persons 
employed  in  domestic  service  and  other  categories  of  honest  labor 
are  entitled,  as  witnesses,  to  credence  equally  with  those  who  plume 
themselves  on  their  higher  level,  affecting  to  look  down  on  those 
who  work  for  wages  as.  inferior.  Before  the  law  there  is  no  such 
distinction,  and  in  courts  of  justice  all  must  be  co-ordinated,  irre- 
spective of  the  accidents  of  artificial  and  conventional  social  rela- 
tions. 

Witnesses — Manner  of  Testing  Credibility. — Each  witness  is  a  man 
or  woman  to  be  treated  as  an  individual,  a  moral  unit,  tested  for 
integrity  and  veracity  on  his  merits  or  her  title  to  credit  by  the  in- 
herent and  extrinsic  elements  of  belief,  or  the  circumstantial  criteria 
of  credibility.  These  are  the  only  considerations  for  the  court  in 
weighing  evidence. 

Insane  Delusions — Business  Capacity. — Business  capacity  may  co- 
exist   with    monomania    or   insane   delusions. 

Insane  Delusions — Vulgarity  of  Testatrix. — Where  the  vulgarity  in 
behavior  and  speech  of  a  testatrix  is  relied  upon  to  establish  the 
presence  of  insane  delusions,  her  whole  c'onduct,  at  home  and  aboard, 
should  be  considered,  and  not  merely  her  conduct  within  her  own 
house,  the  alleged  acts  of  immodesty  in  this  case  being  confined  to 
the  home  premises  of  the  testatrix,  while  her  behavior  abroad  was 
not  subject   to   adverse   criticism. 

Insane  Delusions — Eccentricities  not  Suddenly  Acquired. — Eccentric 
habits  of  speech,  if  not  suddenly  acquired,  are  not  evidence  of  in- 
sanity. 

Expert  Evidence — Its  Nature  and  Value. — Expert  evidence  is  really 
an  argument  of  the  expert  to  the  court,  and  is  valuable  only  with 
regard  to  the  proof  of  the  facts  and  the  validity  of  the  reasons  ad- 
vanced for  the  conclusions. 

Insane  Delusions — Suspicions  as  to  Husband's  Constancy. — Where 
there  was  at  least  one  instance  in  the  conduct  of  a  husband  which 
might  arouse  in  the  mind  of  the  wife  a  suspicion  as  to  his  con- 
stancy, the  fact   that   her  suspicions   may   have  been   unjust   and   her 


272  Coffey's  Probate  Decisions,  Vol.  1. 

inferences  too  general,  is  merely  an  error  of  logic,  and  not  an  evi- 
dence of  insanity  or  of  an  insane  delusion.  She  has  a  right  to  in- 
fer, however  erroneously,  or  from  inadequate  premises,  to  a  universal 
conclusion. 

Insanity — Faulty  Logic. — False  logic  or  faulty  ratiocination  is  far 
from  the  manifestation  of  insanity,  so  long  as  the  process  is  formally 
correct,  not  incoherent  or  inconsequential. 

Insane  Delusions — Fear  of  Poisoning. — A  fear  of  poisoning  on  the 
part  of  a  testati'ix,  even  though  a  delusion,  must,  in  order  to  in- 
validate her  testamentary  act,  be  continuous,  persistent,  and  opera- 
tive upon  her  volitional  capacity. 

Insane  Delusions — Fear  of  Poisoning. — The  mistaken  belief  of  a 
testatrix,  when  suffering  with  chronic  stomach  trouble,  that  her  food 
has  been  tampered  with,  does  not,  as  a  matter  of  law,  amount  to 
an  insane  delusion. 

Insanity — Unreasonable  Suspicions.— Unfounded  and  unreasonable 
suspicions   are  not   insanity. 

Insanity — Insomnia. — The  mind  of  a  testatrix  is  not  necessarily 
diseased  because  she  is  at  times  troubled  with  insomnia  while  af- 
flicted with  an  intestinal  ailment. 

Insane  Delusions — Unfounded  Suspicions. — The  sanity  of  the  testa- 
trix in  this  case  being  questioned  because  she  suspected  that  her 
husband  was  unfaithful  to  her,  and  that  he  was  attempting  to  poison 
her  and  to  send  her  to  an  insane  asylum,  the  court  observed:  There 
is  a  very  large  class  of  people  whose  sanity  is  undoubted,  who  are 
unduly  jealous  or  suspicious  of  others,  and  especially  of  those  closely 
connected  with  them,  and  who  upon  the  most  trivial,  even  whimsical, 
grounds  wrongfully  impute  the  worst  motives  and  conduct  to  those 
in  whom  they  ought  to  confide.  This  insanity,  which  is  developed 
in  a  great  variety  of  forms,  is  altogether  too  com;non,  and  too  many 
persons  confessedly  sane  are  to  a  greater  or  less  degree  afflicted  with 
it,  to  justify  us  in  saying  that  because  the  deceased  was  so  af- 
flicted she  was  insane,  or  the  victim  of  an  insane  delusion. 

Insane  Delusions — Suspicions — Evidence  and  Burden  of  Proof. — The 
line  between  unfounded  and  unreasonable  suspicions  of  a  sane  mind 
and  insane  delusions  is  sometimes  quite  indistinct  and  difficult  to 
define.  However,  the  legal  presumption  is  in  favor  of  sanity,  and  on 
the  issue  of  sanity  or  insanity  the  burden  is  upon  him  who  asserts 
insanity  to  prove  it.  Hence,  in  a  doubtful  case,  unless  there  ap- 
pears a  preponderance  of  proof  of  mental  unsoundness,  the  issue 
should  be  found  the  other  way. 

Insane  Delusions — Suspicions — Tests  of  Insanity. — Suspicion  is  the 
imagination  of  the  existence  of  something,  especially  something 
wrong,  without  proof,  or  with  but  slight  proof;  it  is  an  impression 
in  the  mind  which  has  not  resulted  in  a  conviction.     It  is  svnonvmcus 


Estate  of  Scott.  273 

with  doubt,  distrust,  or  mistrust — the  mind  is  in  an  unsettled  con- 
dition. Suspicion  existing,  slight  evidence  might  produce  a  rational 
conviction  or  conclusion;  this  without  evidence,  however  slight,  would 
be  a  delusion.  Is  there  evidence,  however  slight?  This  is  the  test. 
The  suspicion  may  be  illogical  or  preposterous,  but  it  is  not,  there- 
fore, evidence  of  insanity. 

Insane  Delusions — Suspicions  as  to  Husband's  Constancy. — If  a 
wife  has  evidence,  though  slight,  on  which  to  base  a  suspicion  of  her 
husband 's  unfaithfulness,  and  has  no  settled  conviction  on  the  sub- 
ject,  her  suspicion  does   not   amount   to  an   insane   delusion. 

Insane  Delusion — Conspiracy  to  Confine  Wife  in  Asylum. — The  con- 
tention in  this  case  that  the  testatrix  was  afflicted  with  an  insane 
delusion  in  that  she  believed  her  husband  conspired  to  confine  her 
in  an  insane  asylum,  was  found  by  the  court  to  be  unsupported  by 
the  evidence,  especially  in  view  of  the  fact  that  the  husband  had 
twitted  her  of  being  crazy  and  threatened   to   break  her  will. 

Insane  Delusions — Testimony  of  Business  Men. — The  value  of  the 
testimony  of  business  men  and  acquaintances,  acquired  in  commercial 
dealings  with  a  person  alleged  to  be  the  victim  of  insane  delusions,  is 
favorably  regarded  by  the   courts,   on  the  issue   of  insanity. 

Testamentary  Capacity — Inquisition  Before  Execution  of  Will. — 
The  examination  by  medical  experts  of  a  testatrix  prior  to  her  exe- 
cution of  her  will,  for  the  purpose  of  determining  her  testamentary 
capacity,  is  discussed  by  the  court,  both  as  a  suggestion  of  insanity, 
and  as  a  wise  precaution. 

Testamentary  Capacity — Will  as  Evidence. — A  will  may  be  consid- 
ered in  proof  of  its  own  validity  and  of  the  sanity  of  its  maker. 

Testamentary  Capacity — Suspicion  of  Husband. — If  there  are  causes 
sufficient  to  induce  a  sane  woman  to  ignore  her  husband  in  her  will, 
or  reduce  what  otherwise  would  have  been  a  just  allowance,  the 
fact  that  she  entertains  an  unjust  or  an  unfounded  suspicion  in  re- 
gard to  his  treatment  of  her,  or  an  unjust  prejudice  against  him,  does 
not  affect  the  will  nor  demonstrate  that  she  is  necessarily  of  un- 
sound  mind. 

Testamentary  Capacity — Test  for  Determining. — The  tests  of  tes- 
tamentary capacity  are:  (1)  Understanding  of  what  the  testatrix 
is  doing;  (2)  how  she  is  doing  it;  (3)  knowledge  of  her  property; 
(4)  how  she  wishes  to  dispose  of  it;  (5)  and  who  are  entitled  to  her 
bounty. 

Testamentary  Capacity — Testimony  of  Attesting  Witnesses. — The 
testimony  of  the  attesting  witnesses,  and,  next  to  them,  the  testimony 
of  those  present  at  the  execution  of  the  will,  are  most  to  be  relied 
upon   in   determining  the  question   of  testamentary  capacity. 

Testamentary   Capacity — Insane  Delusions. — In    this   case    the   hus- 
band  of  the   testatrix  contests  her  will  on   the   ground  that  she  was 
Prob.  Dec,  Vol.  I — 18 


274  Coffey's  Probate  Decisions,  Vol.  1. 

of  unsound  mind  by  reason  of  being  the  victim  of  insane  delusions 
that  her  husband  was  unfaithful,  that  he  was  trying  to  poison  her, 
and  that  he  was  conspiring  to  confine  her  in  an  insane  asylu-m,  but 
the  court  finds  against  the  contestant  and  sustains  the  will. 

Morris  M.  Estee,  A.  Everett  Ball,  and  Charles  A.  Shurt- 
leff,  for  contestant,  Emerson  W.  Scott. 

A.  E.  Bolton,  C.  S.  Peery,  J.  H.  Henderson,  J.  B.  Gart- 
land,  R.  E.  Houghton,  P.  G.  Galpin,  H.  M.  Owens,  and  Guy 
C.  Earl,  for  proponents  and  respondents. 

E.  D.   Sawyer,  for  persons  otherwise  unrepresented. 

COFFEY,  J.  This  is  a  contest  instituted  by  E.  W.  Scott 
to  the  probate  of  certain  papers  filed  herein  on  December 
22,  1897,  purporting  to  be  the  last  will  and  codicils  of 
Angelia  R.  Scott,  deceased,  the  proponents  being  the  execu- 
tors named  therein,  C.  S.  Tilton,  Frank  Garcia,  Junior,  and 
C.  M.  Gerrish,  who  simultaneously  present  a  petition  for 
admission  to  probate  and  the  issue  of  letters  testamentary 
to  them  thereon  and  thereunder. 

The  petition  for  probate  sets  forth  that  decedent  died  on 
December  16,  1897,  in  San  Francisco,  of  which  city  and 
county  she  was  a  resident  and  left  estate  therein  and  also 
in  the  counties  of  Santa  Clara  and  Tulare,  consisting  of 
real  and  personal  property  not  exceeding  $450,000  in  ag- 
gregate value,  all  of  which  was  her  separate  estate;  that  she 
left  a  will  and  codicils,  copies  of  which  are  hereinafter  in- 
serted in  this  opinion;  that  the  petitioners  named  as  execu- 
tors consent  to  act;  the  names  of  the  devisees  and  next  of 
kin  are  given;  and  it  is  alleged  that  decedent  had  no  other 
devisees  or  heirs  at  law;  it  is  further  alleged  that  decedent 
left  a  husband,  E.  W.  Scott,  but  no  children,  and  that  her 
father  and  mother  had  predeceased  her;  it  is  finally  alleged, 
in  proper  phrase  and  form,  that  she  was  of  sound  mind  at 
the  time  of  executing  the  papers  propounded  and  that  in 
all  respects  and  circumstances  her  testamentary  acts  were 
free  from  legal  fault  or  blemish,  and,  therefore,  should  be 
consummated  through  the  court. 

The  will  and  codicils  are  as  follows : 


Estate  of  Scott.  275 

"In  the  Name  of  God,  Amen.  I,  Angelia  R.  Scott,  of 
the  City  and  County  of  San  Francisco,  State  of  California, 
being  of  sound  and  disposing  mind  and  memory,  do  make, 
publish  and  declare  this  my  last  will  and  testament. 

"I.  I  give,  devise  and  bequeath  to  the  officers  of  Apollo 
Lodge  of  the  Independent  Order  of  Odd  Fellows  in  the  City 
and  County  of  San  Francisco,  and  their  successors  in  office,  the 
sum  of  Two  Thousand  (2,000)  Dollars,  to  be  by  them  invested 
and  the  proceeds  thereof  to  be  used  in  the  preservation  and 
care  of  the  cemetery  lots  in  the  Odd  Fellows  Cemetery  in  the 
City  and  County  of  San  Francisco,  in  which  my  late  hus- 
band, Salvin  P.  Collins,  and  my  nephew,  John  Quincy  Wor- 
mell,  are  buried. 

"II.  I  give,  devise,  and  bequeath  to  Horatio  Stebbins  the 
sum  of  Three  Thousand  (3,000)  Dollars,  to  be  used  by  him 
at  his  discretion  to  advance  the  interests  of  the  First  Uni- 
tarian Church  in  this  City  and  County. 

"III.  I  give,  devise,  and  bequeath  to  Carl  Anderson,  my 
coachman,  who  has  served  me  faithfully  for  five  years,  Five 
Hundred   (500)  Dollars. 

"IV.  I  give,  devise,  and  bequeath  my  diamond  earrings, 
one  bar  pin  with  one  diamond,  one  finger  ring  set  with  three 
large  diamonds,  my  chain  and  charms  to  my  niece,  Helen 
Garish,  and  my  watch  to  my  niece,  Ella  Perkins. 

"V.  I  give,  devise,  and  bequeath  my  cluster  diamond 
ring  and  one  small  solitaire  diamond  finger  ring,  the  gift 
of  my  late  hiLsband,  S.  P.  Collins,  to  his  sister,  Mrs.  Rachel 
Johonnot. 

"VI.  I  give,  devise,  and  bequeath  one  diamond  solitaire 
finger  ring  to  Mrs.  Frank  Garcia,  wife  of  my  nephew,  Frank 
Garcia. 

"VII.  I  give,  devise,  and  bequeath  all  the  rest  and 
residue  of  my  property  as  follows :  One  fiftieth  thereof  to 
each  of  the  following  persons,  children  of  my  late  brother, 
Amos  P.  Wormell.  namely :  One-fiftieth  to  Andrew  Wor- 
mell  of  Dover,  New  Hampshire:  one-fiftieth  to  Charles  Wor- 
mell,  of  Sunbury,  Ohio;  one-fiftieth  to  AVilliam  Wormell 
of  the  same  place ;  one  fiftieth  to  Eugene  Wormell  of  Liver- 
more,  Maine;  one-fiftieth  to  Lettie  AVormell  of  Colorado; 
one-fiftieth  to   Salvin  Ulysses  Wormell  of  Phillips,   Maine; 


276  Coffey's  ProbxVte  Decisions,  Vol.  1. 

two-fiftieths  thereof  to  Louisa  E.  Roe,  daughter  of  my  late 
brother,  Amos  P.  Wormell,  of  Island  Pond,  Vermont;  six- 
fiftieths  thereof  to  my  sister  Mary  A.  Cowan  and  her  daugh- 
ter Amanda  Meily,  share  and  share  alike;  six-fiftieths  there- 
of to  M.  S.  Chamberlain,  nephew  of  my  late  husband, 
S.  P.  Collins,  now  residing  at  Concord,  New  Hampshire; 
one-fiftieth  thereof  to  Mrs.  Rachel  Johonnot,  sister  of  my 
late  husband,  residing  at  Montpelier,  Vermont;  one-fiftieth 
thereof  to  Florence  Swall,  wife  of  George  Swall  of  Moun- 
tain View,  California,  niece  of  S.  P.  Collins,  deceased;  one- 
fiftieth  thereof  to  Eugene  Wormell,  son  of  my  brother  Na- 
thaniel Wormell,  now  residing  at  Seattle,  Washington;  one- 
eighth  to  my  nephew  Franlv  Garcia ;  one-eighth  to  my  niece 
Helen  Gerrish,  wife  of  Charles  Gerrish  of  Port  Townsend, 
Washington;  one-eighth  thereof  to  Mrs.  Ella  Perkins,  of 
Santa  Clara  County,  California,  wife  of  Caleb  F.  Perkins; 
one-tenth  thereof  to  Mrs.  Louisa  Garcia,  my  sister;  one 
fortieth  thereof  to  Chester  and  Nellie  Swall,  son  and  daugh- 
ter of  George  and  Florence  Swall  of  Mountain  View,  Cali- 
fornia, share  and  share  alike,  two-fiftieths  thereof  to  my 
husband,  E.  W.  Scott. 

"In  case  any  of  my  legatees  contest  the  probate  of  this 
will,  I,  hereby  revoke  the  legacy  of  such  contestant,  and  di- 
rect that  such  legacy  become  a  part  of  my  estate. 

"VIII.  I  nominate  and  appoint  Charles  S.  Tilton,  Caleb 
F.  Perkins,  and  Frank  Garcia,  Jr.,  as  executors  of  this  my 
last  Will  and  Testament  without  bonds. 

"In  Testimony  Whereof,  I  have  made,  published  and  de- 
clared the  foregoing  as' my  last  Will  and  Testament. 

"ANGELIA  R.  SCOTT.   (Seal.) 

"Signed,  sealed,  published  and  declared  to  be  her  last 
Will  and  Testament  by  the  aforesaid  Angelia  R.  Scott,  in 
our  presence,  who  in  her  presence  and  in  the  presence  of 
each  of  us,  and  at  her  request  have  hereto  set  our  hands  and 
seals,  as  witness  this  seventh  day  of  November,  A.  D.  1891. 

"JACOB  C.  JOHNSON,  1519  Van  Ness  Ave. 

"EDWARD  H.  HORTON,  30  Post  Street. 

"Whereas,  I  Angelia  R.  Scott,  by  my  will  subscribed  on 
the  7th  day  of  November,  1891,  appointed  Caleb  F.  Perkins 


Estate  of  Scott.  277 

together  with  Charles  S.  Tilton  and  Frank  Garcia,  Jr.,  to 
be  executors  of  my  last  Will  and  Testament. 

"Now,  then,  I  hereby  revoke  the  nomination  and  appoint- 
ment of  said  Perkins  as  one  of  my  said  executors,  and  it  is 
my  desire  that  this  Codicil  be  annexed  to  and  made  a  part 
of  my  last  Will  and  Testament  as  aforesaid  to  all  intents 
and  purposes.  ANGELIA  R.  SCOTT. 

"Signed,  sealed,  published  and  declared  to  be  and  as  and 
for  a  codicil  to  her  last  Will  and  Testament  by  Angelia  R. 
Scott,  in  our  presence,  who  in  her  presence,  and  in  the 
presence  of  each  of  us  and  at  her  request  have  hereto  set 
our  hand  and  seals  as  witnesses  this  25th  day  of  February, 
A.  D.  1892.  J.    C.    JOHNSON. 

"E.  H.   HORTON. 

"Whereas,  I.  Angelia  R.  Scott,  of  the  City  and  County  of 
San  Francisco,  have  made  my  last  AVill  and  Testament  in 
writing,  bearing  date  the  seventh  day  of  November,  in  the  year 
of  our  Lord,  one  thousand,  eight  hundred  and  ninety-one.  and 
in  and  by  which  I  give  and  bequeath  to  my  sister,  Mary  A. 
Cowan  and  her  daughter,  Amanda  Meily,  six-fiftieths  of  the 
residue  of  my  estate  (after  providing  for  certain  legacies) 
to  be  divided  share  and  share  alike  between  them,  and  where- 
as, since  then  said  Mary  A.  Cowan  has  died,  and  I  desire  to 
revoke  so  much  of  said  Will  as  devises  six-fiftieths  to  her 
and  her  daughter  Amanda  Meily. 

"And  Whereas,  by  the  same  instrument,  I  have  devised 
one-fiftieth  of  said  residue  to  Florence  Swall,  wife  of  George 
Swall  of  Mountain  View,  and  since  that  time  said  Florence 
has  died,  leaving  three  children ;  and  whereas  I  also  devised 
to  Eugene  Wormell,  son  of  my  brother,  Nathaniel  Wormell. 
residing  at  Seattle,  Washington,  one-fiftieth  part  of  said 
residue,  and  since  then  he  has  died,  and  whereas,  I  also  de- 
sire to  change  the  devise  to  Frank  Garcia,  of  one-eighth  of 
my  estate,  and  to  decrease  the  amount  thereof  and  whereas 
I  did  devise  one-eighth  of  my  said  estate  to  Helen  Garish. 
Avife  of  Charles  Garish;  and  I  desire  to  increase  the  amount 
devised  to  her;  and  whereas,  I  did  devise  one-eighth  of  the 
residue  of  my  said  estate  to  mj^  niece  Ella  Perkins.  I  now 
desire  to  devise  something  to  her  four  children  ;  and  whereas,  I 


278  Coffey's  Probate  Decisions,  Vol.  1. 

now  desire  to  make  a  bequest  to  the  Old  People's  Home  of 
San  Francisco,  and  to  the  three  children  of  my  present 
husband,  E.  W.  Scott;  and  whereas,  I  desire  to  revoke  the 
gift  of  two  thousand  dollars  to  the  Apollo  Lodge  of  the 
Independent  Order  of  Odd  Fellows,  and  desiring  to  preserve 
the  general  features  of  my  former  will  making  new  dis- 
tributions when  necessary  by  deaths  which  have  happened 
since  the  making  of  that  will,  I  prefer  to  do  this  by  way  of 
another  codicil  to  my  former  Will  instead  of  executing  a  new 
Will;  but  in  any  respect  in  which  this  codicil  shall  conflict 
with  the  provisions  of  my  former  Will,  I  fully  intend  that 
this  codicil  shall  control  the  provisions  of  the  former  Will  and 
that  otherwise  the  former  Will  and  the  codicil  thereof  shall 
stand  unaffected  by  it. 

"I  revoke  the  bequest  I  made  in  my  said  Will  of  Two 
Thousand  Dollars  to  the  Apollo  Lodge  of  the  Independent 
Order  of  Odd  Fellows,  and  I  give,  devise  and  bequeath  Two 
Thousand  Dollars  to  the  Apollo  Lodge  of  the  Independent 
Order  of  Odd  Fellows  in  the  City  and  County  of  San  Fran- 
cisco, and  I  request  them  to  take  care  of  my  cemetery  lot  in 
the  Odd  Fellows  Cemetery  in  this  city  and  County  of  San 
Francisco. 

"I  give,  devise  and  bequeath  the  sum  of  One  Dollar  to 
each  of  the  following  persons :  To  Mrs.  Amanda  Miley, 
daughter  of  Mary  A.  Cowan ;  to  Mrs.  Nellie  Swall,  wife  of 
George  Swall;  to  Mrs.  Eliza  Paisley,  wife  of  Donald  Paisley, 
sister  of  my  late  husband. 

"I  give,  devise  and  bequeath  to  my  maid,  Estella  Burn- 
ham,  Five  Hundred  Dollars  if  she  is  in  my  employment 
down  to  the  time  of  my  decease. 

"I  give,  devise  and  bequeath  my  emerald  finger  ring  set 
with  diamonds,  and  also  my  large  solitaire  diamond  finger 
ring  to  Mrs.  Helen  Garish. 

"I  give,  devise  and  bequeath  all  the  rest  and  residue  of 
my  estate  subject  to  all  unrevoked  legacies  and  bequests  o* 
my  Will,  and  subject  to  those  herein  contained  as  follows : 

"Of  such  residue,  two-fiftieths  thereof  to  my  nephew,  An- 
drew Wormell  of  Dover,  New  Hampshire. 

"Two-fiftieths  thereof  to  Charles  Wormell,  of  Sunbury, 
Ohio. 


Estate  of  Scott.  279 

"Two-fiftieths  thereof  to  my  nephew,  William  Wormell  of 
the  same  place. 

"Two-fiftieths  thereof  to  mj''  nephew,  Salvin  Ulysses  Wor- 
mell, of  Phillips,  IMaine. 

"Three-fiftieths  thereof  to  my  niece,  Louisa  E.  Roe,  of 
Island  Pond,  Vermont,  daughter  of  my  brother,  Amos  P. 
Wormell. 

"One-fiftieth  thereof  to  Lulu  Wormell,  of  Oakland,  daugh- 
ter of  my  nephew  Eugene  Wormell,  now  deceased. 

"Six-fiftieths  thereof  to  Mortimer  S.  Chamberlain,  resid- 
ing at  Concord,  New  Hampshire,  nephew  of  my  late  hus- 
band, S.  P.  Collins. 

''Three-fiftieths  thereof  to  Mrs.  Rachael  Johonnet,  sister 
of  my  late  husband,  S.  P.  Collins. 

"Three-fiftieths  thereof  to  Ella  Perkins,  of  Santa  Clara 
County,  wife  of  C.  F.  Perkins, 

"Three-fiftieths  thereof  to  be  divided  share  and  share 
alike  between  the  four  children  of  said  Ella  Perkins,  or  the 
survivors  of  them  at  my  decease. 

"Seven-fiftieths  thereof  to  Helen  Garish,  my  niece,  wife 
of  Charles  Garish  of  Port  Townsend,  Washington. 

"Four-fiftieths  thereof  to  my  sister,  Mrs.  Garcia,  wife  of 
Frank  Garcia,  (senior). 

"Three-fiftieths  thereof  to  be  divided  share  and  share 
alike  between  the  children,  now^  living  or  the  survivor  of 
them,  at  my  death,  of  Florence  Swall,  and  George  Swall,  of 
Mountain  View,  California,  said  Florence  Swall  being  a  niece 
of  my  late  husband,  S.  P.  Collins. 

"Four-fiftieths  thereof  to  Frank  Garcia,  Jr.  son  of  Frank 
Garcia. 

"Two-fiftieths  thereof  to  my  husband,  E.   W.   Scott. 

"One  fiftieth  thereof  to  Lloyd  N.  Scott,  for  himself,  for 
his  brother,  Wesley  B.  Scott,  and  his  sister,  Laura  May 
Scott,  share  and  share  alike;  but  he  is  to  receive  and  hold 
in  trust  the  shares  of  Wesley  B.  Scott  and  Laura  B.  Scott., 
invest  the  same,  and  use  the  income  or  principal,  if  neces- 
sary, for  their  education  and  support  until  both  beneficia- 
ries shall  die  or  become  of  age;  and  in  case  of  death  of 
either  beneficiary  the  share  of  such  decedent  shall  be  di- 
vided equally  between  the  survivors,  unless  decedent  leaves 


280  Coffey's  Probate  Decisions,  Vol.  1. 

issue  him  or  her  surviving:,  and  in  that  event  the  share  of  said 
decedent  shall  go  to  said  issue. 

''One-fiftieth  thereof  to  the  Old  People's  Home  of  San 
Francisco. 

"One-fiftieth  thereof  to  the  San  Francisco  Protestant 
Orphan  Asylum. 

"And  in  case  any  of  my  devisees  or  legatees  shall  contest 
the  probate  of  this  Will  the  bequest  or  devise  to  them  is 
hereby  revoked,  and  the  amount  bequeathed  or  divised  to 
such  contestant  shall  go  back  and  become  a  part  of  my  es- 
tate, and  be  divided  pro  rata  among  the  residuary  devisees. 

"I  also  nominate  and  appoint  Charles  Garish  to  be  an- 
other executor  of  my  estate. 

"I  also  revoke  the  bequest  of  my  one  large  solitaire  dia- 
mond finger  ring  to  Mrs.  Frank  Garcia,  formerly  wife  of, 
Frank  Garcia,  Jr.,  and  I  give,  devise  and  bequeath  the  same 
to  Helen  Garish. 

"(Seal)         ANGELIA  R.  SCOTT. 

"Signed,  sealed  and  published  and  declared  to  be  and  as 
for  a  codicil  to  her  last  Will  and  Testament  by  Angelia  R. 
Scott  in  our  presence,  who  in  her  presence  and  in  the  pres- 
ence, of  each  of  us  and  at  her  request,  have  hereto  set  our 
hands  and  seals  as  witnesses  this  22nd  day  of  October,  A. 
D.  1897. 

"JACOB  C.  JOHNSON,  1519  Van  Ness  Ave. 

"EDWARD  H.   HORTON,  2110  Devisadero  St. 

"PHILIP  G.  GALPIN,  1738  Broadway." 

The  contestant  alleges  that  he  is  the  surviving  husband  of 
deceased,  of  the  age  of  sixty-one  years,  and  as  such  survivor 
is  an  heir  at  law  of  said  deceased  and  interested  in  the  es- 
tate, and  is  a  legatee  under  the  instrument  propounded  to 
the  extent  of  two-fiftieths  of  said  estate.  He  denies  each 
and  all  the  matters  set  forth  in  the  petition  for  probate  ex- 
cept the  death,  age  and  the  residence  of  decedent.  He  then 
sets  up  two  grounds  of  opposition  and  contest:  (1)  Un- 
soundness of  mind;  (2)  Undue  influence  exercised  by  Louisa 
Garcia,  a  sister,  Helen  Gerrish,  a  niece,  and  Frank  Garcia, 
a  nephew  of  said  decedent,  the  undue  influence  consisting  in 
falsely  representing  to  decedent  that  her  husband  was  un- 


Estate  of  Scott.  281 

true  to  her  for  the  purpose  of  misleading,  deceiving,  and 
prejudicing  her  against  him  and  controlling  her  in  making 
her  Will  and  inducing  her  to  neglect  to  provide  suitably 
for  him,  the  natural  object  of  her  bounty,  and  that  such  false 
representations  had  the  purposed  effect.  The  contestant 
further  alleges  that  at  the  time  of  the  alleged  testamentary 
acts  the  testatrix  was  laboring  under  certain  insane  delu- 
sions, (a)  that  her  husband  was  untrue  to  her,  (b)  that  he 
was  trying  to  poison  her,  and  (c)  that  he  was  engaged  in  a 
conspiracy  with  others  to  commit  her  to  an  insane  asylum, 
and  that  the  said  Louisa  Garcia,  Helen  Gerrish,  and  Frank 
Garcia  in  furtherance  of  their  purpose  fostered  and  encour- 
aged these  insane  delusions.  All  of  these  allegations  are 
traversed  in  due  form  by  proponents  and  respondents. 

Contestant  claims  a  right  to  institute  and  prosecute  a  eon- 
test  under  section  1307,  Code  of  Civil  Procedure,  as  a  per- 
son interested,  as  one  who  would  take  under  the  statute  of 
succession  if  decedent  had  died  intestate. 

Issue  having  been  joined,  this  contest  came  on  for  trial 
before  the  court,  a  jury  being  waived,  on  Tuesday,  the 
twTntj^-second  day  of  March,  1898,  and  continued  with  in- 
termissions until  Thursday,  the  nineteenth  day  of  May,  1898, 
when  after  ample  argument  extending  over  four  days,  the 
issues  were  submitted  for  deliberation  and  decision. 

The  entire  time  of  trial,  including  the  taking  of  testimony 
and  the  audition  of  argument,  was  eighty-one  hours  and 
forty-five  minutes ;  divided  as  follows : 

Examination  of  witnesses:  Sixty-six  hours. 

Arguments  of  counsel :  P^'ifteen  hours  and  forty-five  min- 
utes. 

There  were  forty-two  witnesses  for  contestants,  thirty-six 
for  respondents,  seventy-eight  in  all. 

These  minutiae  are  material  only  as  intimating  the  im- 
portance imputed  to  the  issues  by  counsel  and  their  clients 
and  suggesting  the  magnitude  of  the  interests  involved  em- 
])loying  the  energies  and  abilities  of  lawyers,  of  experience 
and  eminence,  whose  intellectual  resources  and  professional 
skill  seemed  to  be  taxed  to  the  utmost  in  honorable  endeavor 
1o  achieve  success  for  what  each  in  good  faith  from  his  point 
of  view  conceived  to  be  the  right. 


282  Coffey's  Probate  Decisions,  Vol.  1. 

It  may  be  that,  in  these  cases,  the  right  might  be  developed 
and  determined  in  a  shorter  space,  but  those  whose  fortunes 
are  at  stake  in  such  a  struggle  and  who  bear  the  brunt  of 
its  expense  of  time  and  treasure  are  more  immediately  con- 
cerned in  the  calculation  of  cost  than  the  critics  to  whom 
the  result  is  indifferent,  except  that  it  affords  a  theme  for 
censorious  comment  upon  the  tedious  process  of  eliciting 
evidence  and  the  unrestricted  scope  accorded  to  advocates  in 
their  examinations  and  arguments.  Keform  in  this  particu- 
lar may  be  necessary,  but  it  must  not  be  so  sharp  or  sudden 
as  to  collide  with  justice  to  individual  suitors  who  demand 
thoroughness  of  treatment. 

The  issues  raised  by  the  pleadings  are  reduced  in  proof, 
as  stated  by  counsel  for  contestant  in  final  argument,  to  the 
following : 

That  the  testatrix  was  of  unsound  mind  by  reason  of  cer- 
tain delusions,  to  wit:  1.  That  her  husband  was  unfaithful; 
2.  That  he  was  trying  to  poison  her;  3.  That  he  was  con- 
spiring to  confine  her  in  an  insane  asylum. 

If  it  has  been  established  that  any  one  of  these  delusions 
infected  her  mind  and  operated  upon  the  testamentary  act, 
the  will  should  be  set  aside. 

Added  to  these  delusions  were  certain  peculiarities  which 
served  to  aggravate  the  cardinal  crotchets  of  her  cerebral 
constitution,  to  magnify  her  malady,  and  to  intensify  her 
insanity,  which  are  thus  summed  up  by  counsel  in  his  clos- 
ing condensation  of  the  case:  (a)  She  was  profane  and  vul- 
gar in  her  language;  (b)  She  danced  perfectly  nude  before 
mirrors;  (c)  She  imagined  that  she  saw  visions;  (d)  She 
heard  noises  in  the  hall  at  night;  (e)  She  asked  many  of 
her  associates  if  they  thought  she  was  insane;  (f)  She  thus 
evidenced  her  own  belief  that  she  was  insane;  (g)  She 
sought  to  be  examined  by  experts  before  she  made  her  will- 
(h)  She  was  inordinately  suspicious;  (i)  She  was  troubled 
with  insomnia;  and  (j)  She  was  insanely  jealous; — all  of 
which  symptoms  indicate  a  mind  diseased. 

The  pith  of  contestant's  contention  may  be  stated  in  his 
counsel's  words:  That  the  testamentary  acts  were  the  prod- 
uct of  a  mind  diseased  by  delusion  caused  by  morbid  jeal- 
ousy. 


Estate  of  Scott.  283 

This,  then,  is  what'we  have  to  consider  in  this  case:  Is 
it  established  by  the  evidence  that  the  mind  of  decedent  was 
so  far  diseased  by  delusion  on  the  dates  of  the  documents 
in  dispute  as  to  destroy  her  tastamentary  capacity?  The 
dates  to  which  this  question  is  addressed  are:  November  7, 
1891,  date  of  the  original  will;  Febniary  25,  1892,  date  of 
the  first  codicil;  October  22,  1897,  date  of  the  second  and 
final  codicil. 

The  legal  presumption  is  in  favor  of  sanity,  and  therefore, 
as  is  conceded  by  contestant,  the  burden  of  proof  is  upon 
him  to  demonstrate  the  contrary,  he  occupies  the  affirmative 
of  the  issue  in  this  case,  and  it  is  incumbent  upon  him  to 
establish  the  proposition  that  the  testatrix  was  of  unsound 
mind  by  reason  of  certain  delusions,  and  he  claims  to  have 
discharged  this  obligation  by  abundant  evidence  of  numer- 
ous witnesses. 

If  contestant  prevail,  in  case  of  doubt,  it  must  be  by  a 
preponderance  of  proof ;  and  the  number,  character,  and  in- 
telligence of  witnesses,  and  their  opportunity  for  observa- 
tion, should  be  taken  into  the  account:  Will  of  Cole,  49  Wis. 
181,  5  N.  W.  346;  Lee  v.  Lee,  4  McCord  (S.  C),  183,  17 
Am.  Dec.  722. 

Criticism  was  made  upon  some  of  the  witnesses  because 
they  were  assumed  to  be  subordinate  socially  to  others  sup- 
posed to  belong  to  a  superior  caste,  but  we  have  no  such 
Hindoo  scale  in  our  American  tribunals,  and  persons  em- 
ployed in  domestic  service  and  other  categories  of  honest 
labor  are  entitled  to  credence  equally  with  those  who  plume 
themselves  on  their  higher  level  affecting  to  look  down  on 
those  who  work  for  wages  as  inferior;  but  before  the  law, 
human  and  divine,  there  is  no  such  distinction,  and  in 
courts  of  justice  all  must  be  co-ordinated  irrespective  of  the 
accidents  of  artificial  and  conventional  social  relations. 

Each  witness  is  a  man  or  woman  to  be  treated  as  an  in- 
dividual, a  moral  unit,  tested  for  integrity  and  veracity  on 
his  merits  or  her  title  to  credit  by  the  inherent  and  intrinsic 
elements  of  belief,  or  the  circumstantial  criteria  of  credi- 
bility. These  are  the  only  considerations  for  the  court  in 
weighing  evidence. 


284  Coffey's  Probate  Decisions,  Vol.  1. 

It  is  claimed  by  counsel  for  contestant  that  at  the  time  of 
the  date  of  the  original  will,  November  7,  1891,  testatrix 
was  laboring  under  well-defined  delusions,  in  relation  to  her 
husband  and  affecting  her  testamentary  capacity.  These 
delusions  had  their  origin  prior  to  that  date,  as  is  sought  to 
be  shown  by  the  testimony  of  witnesses  for  contestant,  and 
covered  the  years  1889,  1890,  and  1891,  forming  a  complete 
chain  showing  their  continuation  and  persistence;  they  had 
their  inception  in  unjust  and  unfounded  suspicions  and 
grew  to  such  an  extent  and  proportion  as  to  render  her  ir- 
rational and  insane,  a  victim  of  insane  delusion,  which,  as 
said  by  the  expert  witness  Dr.  F.  W.  Hatch,  often  arises 
from  misinterpreted  suspicions,  the  gradual  building  up  of 
which  finally  results  in  a  fixed  delusion,  a  condition  that  is 
not  amenable  to  argument  nor  mutable  by  reason;  and  it  is 
further  claimed  by  counsel  that  the  proof  for  proponents 
supports  the  theory  of  contestant  as"  to  the  existence  and 
effect  of  these  delusions  and  is,  in  the  main,  corroborative 
of  his  contention. 

Angelia  R.  Scott  died  on  December  16,  1897,  rising  sixty- 
five  years  of  age,  having  been  born  July  14,  1833,  in  Strong- 
ville,  Maine ;  she  was  over  fifty-eight  years  when  she  made  the 
original  will,  over  fifty-nine  years  when  she  made  the  first 
codicil,  and  over  sixty-four  years  when  the  final  paper  was 
executed,  October  22,  1897.  She  was  the  widow  of  Salvin 
P.  Collins,  when  on  March  6,  1889,  at  the  age  of  fifty-five 
years,  she  married  Emerson  W.  Scott,  a  widower,  fifty-two 
years  old,  several  years  her  junior.  Each  had  passed  the 
period  of  probation  in  the  spousal  relation;  they  were  no 
longer  young ;  both  were  mature  and  experienced  in  married 
life,  with  knowledge  of  the  weakness  as  well  as  the  worth  of 
the  opposite  sex,  with  no  general  illusions  of  the  perfectness 
of  the  individual  man  or  woman ;  what  faults  they  had  were 
carefully  concealed,  and  each  was  concerned  to  appear  to 
best  advantage  in  the  presence  of  the  other,  as  persons  seeking 
each  other's  society  in  the  way  of  sparking  usually  exhibit 
only  the  favorable  aspects  of  their  character,  and  are  adroit 
in  avoiding  the  exposure  of  the  shady  and  the  seamy  sides 
of  selfishness  and  coarseness  in  the  grain  of  the  garb  of  human 


Estate  of  Scott.  285 

nature;  such  is  life  in  love  previous  to  marriage  which  is,  as 
we  are  advised  by  one  of  the  counsel,  "a  leap  in  the  dark," 
which  young  men  and  maidens  should  not  venture  upon  too 
rashly,  but  these  parties  had  each  survived  their  first  venture 
and  hesitated  not  to  embark  upon  another.     She  had  been 
well  reared,  her  parents  were  persons  of  respectability  and 
refinement  and  afforded  her  the  means  and  opportunity  of 
education  suited  to  her  situation  and  sex ;  she  had  come  to 
California  at  an  early  date,   in  the  primitive  and  pioneer 
period  of  American  settlement  and  domination,  and  had  mar- 
ried her  first  husband,  Mr.  Collins,  a  well-known  restaurateur 
and  wine  merchant,  who  founded  an  establishment  which  still 
bears  his  name  and  continues  flourishing  and  perpetuating 
the  goodwill  and  good  cheer  that  brought  him  local  fame  and 
the  considerable  fortune  that  made  his  wife  a  wealthy  widow, 
and  which  was  at  the  time  of  her  second  marriage  some  com- 
pensation for  the  impairment  of  those  graces  of  person  which 
caused  her  to  be  envied  of  her  own  sex  and  the  admired  of 
the  other,  for  she  is  described  as  having  been  endowed  with 
physical  form    and    symmetrical    proportions,   with   stately 
presence  and  dignified  carriage,  conscious    of    her    charms, 
proud  and  vain  of  her  beauty,  alive  to  and  avaricious  of 
admiration  and  jealous  of  attentions  bestowed  by  her  husband 
upon  others  of  her  sex,  of  whom  she  was  not  fond,  having 
little  confidence  in  the  virtue  of  women  and  less  faith  in  the 
honor  of  men. 

This  woman,  who  in  her  youth  possessed  such  a  striking- 
personality  as  to  command  attention  from  the  passing  throng, 
believed  in  her  advancing  years  that  she  still  retained  the 
fatal  gift  which  might  claim  no  worse  a  husband  than  the 
best  of  men,  and  at  the  age  of  fifty  "and  upward"  she  met 
and  married  Scott.  She  was  now  neither  fresh,  nor  fair,  nor 
perfect  in  health,  whatever  might  be  her  conceit  that  age  had 
not  withered  nor  custom  staled  her.  He  had  passed  the 
meridian  of  life,  but  was  tall,  shapely,  broad-shouldered,  a 
fine  figure  of  a  man,  somewhat  soldierly  in  bearing,  dis- 
tinguished in  appearance,  amiable  and  suave  in  manner, 
rather  soft  and  subdued  of  speech,  "genteel  in  personage, 
conduct  and  equipage,"  in  deportment  dignified,  always  cour- 


286  Coffey's  Probate  Decisions,  Vol.  1. 

teous,  especially  to  women,  all  of  whom  as  witnesses  speak 
favorably  of  his  conduct,  to  them  he  seemed  to  be  the  pink 
of  perfection  and  propriety,  calculated  to  please  their  eye  and 
attract  their  admiration,  conscious  of  his  natural  physical 
gifts,  not  averse  to  feminine  regard,— altogether  the  style  of 
man  to  captivate  the  still  ardent  imagination  and  to  arouse 
the  flickering  embers  in  the  heart  of  this  ancient  dame,  for 
she  realized  what  was  said  by  an  author,  that  so  long  as  the 
hearts  of  women  preserve  the  feeblest  spark  of  life,  they 
preserve  also  shivering  near  that  pale  ember,  a  longing  for 
appreciation  and  affection ;  and  although  she  was  aged,  if 
we  may  believe  one  of  the  witnesses,  the  heyday  in  her  blood 
was  neither  tame,  nor  humble,  nor  did  it  always  wait  upon 
the  judgment,  but  it  was  sometimes  as  riotous  in  her  veins 
as  in  younger  days.  She  had  been  a  widow  for  five  years, 
childless  and  alone,  and  she  yearned  for  love  and  companion- 
ship ;  she  had  abundance  of  material  means  but  the  heart 
hunger  was  unappeased;  she  craved  for  something  more  than 
money,  and  she  met  Scott  and  surrendered  at  discretion  to 
his  smooth  speech  and  subduing  tongue. 

She  was  a  childless  widow  of  fifty-six  years ;  he  was  a 
widower  of  uncertain  age,  for  in  this  contest  he  sets  himself 
at  sixty-one  years,  in  the  marriage  license  with  this  decedent 
in  1889  at  fifty,  and  in  the  petition  for  letters  of  administra- 
tion upon  the  estate  of  his  first  wife  in  1881  his  age  was 
stated  at  forty  years,  but  whichsoever  of  these  ages  and  dates 
is  correct,  whether  it  be  1841,  1839,  or  1837,  he  was  much 
younger  than  his  second  wife,  who  was  born  in  1833 ;  she  was 
wealthy,  he  had  no  assessable  property  in  his  own  right  and 
derived  no  independent  fortune  through  the  will  of  his 
former  wife,  who  had  left  her  estate,  which  was  separate 
property,  to  her  three  children,  to  be  held  in  trust  by  three 
trustees,  Scott  being  one.  The  youngest  child,  a  daughter, 
was  in  the  Atlantic  states  at  the  time  of  his  second  marriage, 
and  the  two  boys,  aged  eleven  and  thirteen  years  respectively, 
he  took  to  his  new  home,  the  palatial  mansion  erected  as  a 
homestead  bj^  Mr.  Collins,  and  left  by  him  to  his  widow, 
who  occupied  it  as  her  abode  until  her  death.  To  the  new 
community  Mr.  Scott  added  nothing  but  his  portly  presence 


Estate  of  Scott.  287 

and  his  two  sons,  and  they  made  this  house  thenceforward 
their  home,  contributing  nothing  substantial  to  its  main- 
tenance, although  their  father  as  their  guardian  had  a  con- 
siderable allowance  for  their  support  from  the  estate  of  their 
mother.  He  himself  had  been  unfortunate  in  business  and 
at  the  time  he  married  it  does  not  seem  that  he  possessed 
any  tangible  property,  although  there  appears  somewhat 
obliquely,  if  not  obscurely,  in  the  evidence  that  there  was 
always  speculation  in  his  eye  and  that  he  had  a  number  of 
good  things  in  sight,  but  on  his  own  personal  account  he  had 
nothing  in  hand.  He  had  passed  through  insolvency,  into 
which  he  had  been  driven  by  the  conduct  of  a  partner,  and 
came  out  in  his  own  personal  reputation  legally  unscathed, 
but  had  not  retrieved  his  fortunes  up  to  the  time  when  he 
assumed,  through  his  marriage  with  the  widow  Collins,  charge 
and  control  of  her  property  and  affairs.  It  is  said  by  his 
intimate  friend  of  twenty-eight  years'  standing,  who  has  also 
been  his  attorney,  Mr.  Ball,  that  he  was  at  one  time  in  large 
business  as  an  importer  and  commission  merchant  and  was 
worth  considerable  money,  but  he  failed  through  no  fault  of 
his  own  and  subsequently  engaged  in  various  ventures  and 
enterprises  of  great  pith  and  moment,  and  with  no  notable 
success,  until  the  opportunity  presented  by  his  union  with 
the  rich  relict  of  the  deceased  wine  merchant  Collins.  Mr. 
Ball,  recalling  and  recounting  the  business  career  of  his 
friend  and  office  associate  for  many  years,  says  that  after 
Scott's  mining  operations  and  other  various  speculations  he 
was  "dealing  in  real  estate  and  mines  and  such  like"  up  to 
the  time  of  his  marriage  to  ]\Irs.  Collins,  "after  that  he  was 
a  good  deal  occupied  with  her  affairs."  The  first  essay  in 
that  occupation  was  a  journey  to  New  York  to  dispose  of  a 
stock  of  wines,  with  which  transaction  she  was  not  satisfied, 
although  Mr.  Scott  considered  it  a  success  and  claims  to  be 
the  author  of  the  achievement.  He  says  that  he  shipped 
three  thousand  barrels  of  wine  to  himself  in  New  York  City 
and  went  there  to  sell  it,  and  did  so,  at  thirteen  and  one- 
eighth  cents  net ;  this  was  in  1889 ;  he  sold  a  part  of  it  him- 
self personally  and  then  his  new  wife  telegraphed  him  to  come 
home  and  he  came,  leaving  the  remainder  with  a  firm  of 


288  Coffey's  Probate  Decisions,  Vol.  1. 

brokers  there  who  completed  the  transaction,  which  he  initi- 
ated, on  the  lines  laid  out  by  him.  It  seemed,  however,  that 
she  was  dissatisfied  and  disposed  to  be  querulous  about  the 
matter  then  and  ever  after.  She  advanced  him  a  large 
amount  of  money  for  expenses  which  he  claimed  to  have  ap- 
propriated to  that  end,  and  the  money  was  so  charged  in  her 
books,  but  the  returns  and  account  sales  seem  to  show  that 
the  expenses  were  included  in  the  transaction  of  sale.  She 
complained  to  several  persons,  so  Scott  says,  that  he  squan- 
dered her  money,  "it  was  all  over  town,"  and  this  like  others 
of  her  petulant  plaints  was  born  of  mental  disease  and  delu- 
sion, but,  however  this  may  be,  it  is  plain  that  immediately 
after  the  marriage  Scott  assumed  dominion  over  his  wife's 
affairs  and  estate.  Without  a  dollar  in  his  own  name  prior 
thereto,  the  nominal  ownership  is  at  once  vested  in  him,  and 
E.  W.  Scott's  name  is  even  engraven  over  the  portal  of  the 
new  wine-house  in  Santa  Clara  county.  This  transmutation 
of  title  was  hot  on  the  heels  of  the  marriage. 

Subsequently^  his  wife  has  his  name  excised  and  her  own 
inserted  in  its  lieu,  and  she  resumes  the  reins  which  upon  her 
marriage  she  had  relinquished  to  him,  asserting  that  her  only 
safety  lay  in  dispossessing  him  of  control,  and  expressing 
her  grievous  disappointment  in  having  married  a  man  who 
was  not  capable  of  acting  as  an  auxiliary  in  the  management 
of  her  extensive  interests  much  less  of  exercising  absolute 
dominion  thereover. 

Whether  this  was  a  just  accusation  or  not,  it  must  be  con- 
cluded as  to  her  own  commercial  capacity,  executive  energy, 
and  administrative  ability  that  her  general  prosperity  throve 
apace  and  that  her  fortune  flourished  where  others  faded  and 
failed,  albeit  they  were  sane  and  sagacious  men  of  affairs 
and  she  a  woman  tormented  with  chronic  disease  and  delu- 
sions. Some  instances  are  cited  to  show  that  she  held  out 
against  the  market  and  special  circumstances  are  adduced  to 
suggest  a  lack  of  business  shrewdness,  which  simply  serve  to 
evidence  her  stubborn  confidence  in  her  own  estimate  of  values 
and  the  conditions  of  their  creation,  but  even  occasional  error 
in  judgment  only  signifies  a  tangent  here  and  there  in  the 
consecutive  course  of  her  commercial  career.     By  the  death 


Estate  of  Scott.  289 

of  her  first  husband  she  acquired  a  large  estate,  $334,000 — 
less  $25,000,  special  bequests  and  expenses  of  administration. 
In  all  the  vicissitudes  of  viticulture  and  other  branches  of 
trade  and  industry,  from  that  day  until  the  date  of  her  own 
decease,  from  the  zenith  to  the  nadir,  she  managed  so  wisely 
as  to  preserve  the  fortunfe  left  to  her  by  Collins  with  slight 
diminution  in  value;  the  property  devised  to  her  by  her  first 
husband  is  still  there  in  kind  and  quantity  and  much  im- 
proved in  quality,  and  is  now  the  bone  of  contention  in  this 
contest ;  but  assuming  all  this  as  in  proof,  is  it  inconsistent 
with  contestant's  claim  that  she  was  insane  or  a  monomaniac, 
since  business  capacity  may  coexist  with  monomania  or  delu- 
sions such  as  are  alleged  in  this  case  ? 

What  manner  of  woman  have  we  here  who,  with  unbal- 
anced mind,  held  against  the  elements  of  adversity  an  estate 
of  such  magnitude  virtually  unimpaired  as  she  received  it 
from  him  who  with  her  conjointly  created  it,  when  men  of 
perfect  poise  and  unchallenged  equity  of  intellect  went  to 
the  wall  in  the  time  of  trial  during  the  decade  preceding  her 
death? 

One  of  the  counsel,  occupying  a  position  in  the  controversy 
somewhat  separated  from  partisan  bias  (former  Judge  E.  D. 
Sawyer),  ultimates  his  analysis  of  her  character  in  this  wise: 
A  woman  of  passion,  uncontrollable  temper,  suspicious,  jeal- 
ous, gross  in  manners,  coarse  in  conduct,  vulgar  and  obscene, 
and  yet  a  good  business  woman,  penurious,  exacting  espe- 
cially in  household  affairs :  altogether  an  unlovely  creature 
is  present  in  this  sketch  of  the  testatrix. 

Mr.  Bolton,  of  counsel  for  proponents,  describes  her  as  a 
woman  of  naturally  strong  mind,  of  resolute  purpose,  great 
determination,  and  indomitable  will  power ;  and  Mr.  Estee,  in 
his  written  comment  on  ex- Judge  Sawyer's  observations,  char- 
acterizes her  as  a  "most  aggressive  person,  sane  or  insane; 
as  aggressive  as  any  person  whose  life  was  ever  brought  to  the 
attention  of  a  court  of  justice."  Mr.  Scott's  own  testimony 
shows  that  she  was  a  woman  of  great  clearness  and  strength 
of  mind,  possessing  a  power  of  reasoning  and  logical  faculty. 

We  have  here,  then,  a  case  where  the  possession  of  general 
vigor  of  mind  and  intellectual  capacity  is  conceded,  but  it 

Prob.  Dec,  Vol.  1—19 


290  Coffey's  Probate  Decisions,  Vol.  1. 

is  insisted  that  in  respect  to  the  contestant  the  decedent,  was 
under  such  an  insane  delusion  that  she  could  not  act  sensibly 
in  disposing  of  her  property  hy  will:  Will  of  White,  121  N. 
Y.  412,  24  N.  E.  935. 

Mr.  Shurtleff,  in  the  course  of  his  able  argument,  under- 
takes to  demonstrate  a  progressive  insanity  as  manifested  by 
a  change  of  temperament,  and  supports  this  theory  by  citing 
her  early  education  and  rearing  and  the  subsequent  lapse 
into  habits  of  low  language  and  indecorous  conduct ;  he  claims 
that  a  comparison  of  her  early  life  with  her  later  years  ex- 
hibits a  marked  change  in  temperament  which  is  an  evidence 
of  insanity. 

Mrs.  Helen  L.  Gerrish  says  her  aunt  was  well  reared  and 
particular  as  to  dress,  and  the  evidence  generally  as  to  her 
early  career  proves  that  she  was  a  lady  in  appearance  and  ac- 
tion. The  change  came  later  betokening  the  development  of 
insanity;  the  precise  point  of  time  at  which  the  change  of 
temperament  was  made  manifest  is  not  so  easy  to  ascertain. 
Such  a  change  is  usually  so  gradual  in  the  system  that  the 
terms  of  the  transition  are  almost  imperceptible  until  the 
revolution  is  complete  and  we  become  all  at  once  conscious  of 
the  progress  from  normal  to  abnormal,  and  recall  stages  and 
phases  in  personal  history  unnoted  at  the  time  of  original 
observation.     Such,  it  is  argued,  was  the  case  here. 

The  testimony  as  to  the  acts  of  immodesty  in  speech  and 
behavior  must  be  considered  as  produced  to  establish  the  the- 
ory of  general  insanity ;  otherwise  it  is  not  of  paramount  im- 
portance, since  this  case  has  been  reduced  to  delusion,  and 
fixed  or  habitual  general  insanity  can  no  longer  be  main- 
tained against  this  testatrix ;  but  her  personal  history  is  im- 
portant, and  if  there  be  such  a  transition  in  it,  as  is  claimed 
by  Mr.  Shurtleff,  it  is  worth  while  to  note  it  as  a  circum- 
stance or  link  in  the  entire  chain  of  proof.  She  was  un- 
doubtedly coarse  and  vulgar  in  her  home,  where  she  talked 
and  acted  differently  from  what  she  was  accustomed  to  on 
the  promenade  or  in  her  shopping  expeditions  about  the  town, 
when  she  affected  the  airs  of  an  aristocrat  and  the  demeanor 
and  deportment  of  a  duchess,  but  the  pomp  of  parade  was 
discarded  when  she  reached  the  cover  of  her  own  roof  and 


Estate  of  Scott.  291 

appeared  among  the  people  of  her  own  selection  and  hiring, 
or  a  few  intimates,  before  whom  she  threw  off  her  affecta- 
tion of  reserve  and  reticence  and  assumed  an  abandon  of  act 
and  expression  that  would  put  Billingsgate  to  the  blush  and 
cause  its  fishmongers  to  hide  their  diminished  heads  in  shame. 

More  than  a  passing  allusion  to  these  features  of  foulness 
is  necessary  only  becavise  of  their  being  indicated  as  idiosyn- 
crasies symptomatic  of  insanity  and  denoting  a  radical  revo- 
lution in  her  normal  nature ;  but  if  it  appear  that  these  pecu- 
liarities were  of  long  duration  and  had  attained  gradual 
growth  or  been  in  process  of  development  for  many  years 
antecedent  to  her  second  marriage,  the  effect  of  the  argument 
of  counsel  for  contestant  will  necessarily  suffer  eclipse,  par- 
tial or  total,  as  related  to  the  question  of  insane  delusion. 

We  find  in  the  revelation  of  the,  secrets  of  her  home  life 
an  account  from  the  lips  of  servants  and  other  inmates  of 
her  household  establishment,  stories  of  speeches,  profane  and 
vulgar,  obscene  eccentricities  of  allusion,  departures  from 
modesty  in  dress,  some  sportive  gambolings  before  her  mir- 
rors in  nature's  simplicity  of  vesture,  accompanied  by  re- 
marks of  an  original  and  unique,  but  morally  uncouth,  if  not 
grossly  indecent,  constniction.  All  these  exhibitions  were  in 
the  freedom  of  her  own  home,  where  she  might  do  as  she 
pleased,  where  there  was  no  one  her  right  to  dispute ;  her 
conduct  and  conversation  in  such  circumstances  may  be  criti- 
cised, even  censured,  but  predicating  insanity  thereon  is  an- 
other matter.  Sanity  and  insanity  are  to  be  determined  by 
other  criteria  than  these  occurrences  in  such  premises.  We 
must  take  a  more  comprehensive  survey  of  'the  situation  of 
sanity,  a  broader  and  longer  view,  than  is  afforded  by  the 
circumscribed  boundaries  and  narrow  precincts  of  the  inclosed 
house  and  home.  We  must  take  the  whole  life  of  the  sub- 
ject of  inquiry  in  every  observable  manner  and  from  every 
possible  point  of  view  to  acquire  a  just  judgment. 

It  is  claimed  against  the  contention  of  contestant  that  de- 
cedent's conduct  after  her  second  marriage  was  similar  to 
what  it  was  prior  thereto  and  while  she  was  the  wife  of  Mr. 
Collins  and  during  widowhood :  the  proponents  have  both  by 
the  cross-examination  of  contestant's  witnesses  and  the  direct 


292  Coffey's  Probate  Decisions,  Vol.  1. 

examination  of  their  own  attempted  to  show  that  while  she 
was  a  widow  and  also  before  the  decease  of  her  first  husband 
she  was  profane  and  obscene  in  her  language,  had  had  trouble 
with  her  servants,  had  broken  dishes  and  smashed  furniture, 
and  had  suspected  that  Mr.  Collins  was  unfaithful  to  her. 

This  was  testified  to  by  Mrs.  Meily,  a  Witness  for  contest- 
ant, who  knew  Mrs.  Scott  for  twenty-seven  years,  was  her 
niece,  her  sister's  child,  now  over  fifty  years  of  age,  and  who 
said  that  decedent  would  indulge  in  the  most  dreadful  oaths 
and  obscenities  of  speech,  and  was  always  addicted  to  this 
mode  of  expression  from  the  time  she  first  saw  her  when  she 
visited  her  at  her  home  in  Columbus,  Ohio,  in  1871.  Mrs. 
Meily  did  not  know  Mrs.  Scott  in  her  early  years,  but  the 
first  time  she  saw  decedent  the  latter  used  profane  language 
and  the  habit  continued  %strong  upon  her  always.  Her  vio- 
lence of  temper  w^as  not  exhibited  at  that  time  and  Mrs.  Meily 
first  became  conscious  of  decedent's  infirmity  in  that  particu- 
lar when  the  former  came  to  California,  twenty-four  years 
ago;  then  she  saw  her  aunt  Angelia  in  those  spells  of  sulki- 
ness  and  anger  in  which  she  gave  scope  to  her  destructive  pro- 
pensities. She  was  always  having  trouble  with  her  servants 
and  became  angry  with  them  without  cause.  This  was  be- 
fore the  death  of  Mr.  Collins  and  also  after.  Decedent  was 
a  woman  of  very  suspicious  disposition  and  distrusted  her 
best  friends;  she  was  very  irritable  and  petulant;  she  drank 
every  day  and  was  in  the  habit  of  imbibing  intoxicants  daily 
as  long  as  Mrs.  Meily  knew  her;  drank  whisky  three  or  four 
times  every  day.  This  habit  she  had  during  the  lifetime  of 
Mr.  Collins.  She  used  to  pretend  to  size  or  measure  it  in  a 
tablespoon.  Mrs.  Meily  saw  decedent  several  times  when  she 
thought  she  was  under  the  influence  of  liquor,  but  this  was 
not  during  the  lifetime  of  Mr.  Collins.  Her  habit  of  drink- 
ing grew  gradually.  In  the  latter  years  of  her  life  decedent 
drank  harder  than  before.  She  was  suspicious  of  the  fidel- 
ity of  Mr.  Collins  and  told  witness  so  many  times;  all  the 
same  w^ith  Mr.  Scott.  Decedent  was  a  woman  of  striking 
appearance  at  the  time  witness  first  met  her  and  always 
dressed  very  neatly,  taking  a  great  deal  of  pains  with  her 
attire.     She  was  proud  of  her  personal  beauty,  fond  of  money, 


Estate  op  Scott.  293 

avaricious.  Witness  knew  that  decedent  smashed  dishes  and 
furniture  in  the  lifetime  of  Collins.  Decedent  was  insanely 
jealous  of  her  second  husband  and  accused  witness  of  inti- 
macy with  him,  which  accusation  was  utterly  false,  and  there 
was  no  reason  for  any  such  imputation.  Witness  denied  ever 
having  been  alone  with  Mr.  Scott.  Mrs.  Meily  is  a  member 
of  St.  Peter's  Episcopal  Church,  and  when  the  decedent,  her 
aunt,  learned  that  she  had  joined  the  church  she  cursed  and 
swore  violently;  this  was  at  Easter  time  in  1896.  Decedent 
spoke  to  witness  of  her  suspicion  of  Scott's  intimacy  with 
the  domestics  and  told  her  that  she  had  employed  detectives 
to  track  him,  and  that  she  herself,  in  company  with  her  sister, 
Mrs.  Garcia,  went  in  her  carriage  to  three  different  houses 
to  inquire  if  there  was  a  woman  kept  there  by  Mr.  Scott, 
without  result.  On  one  occasion  three  years  ago,  in  front 
of  her  first  husband's  picture,  the  portrait  of  Salvin  Perry 
Collins,  decedent  swore  roundly  at  it  and  cursed  him  and 
said  she  hoped  he  was  in  the  nethermost  portion  of  the  in- 
fernal regions,  or  words  to  that  effect. 

Mrs.  Nellie  Swall,  a  niece  of  the  first  husband  of  the  de- 
cedent, testified  that  she  knew  her  ever  since  she  could  re- 
member. The  witness  was  born  in  1858;  her  father,  Lemuel 
Perry  Collins,  died  before  her  uncle,  Salvin  Perry  Collins. 
Witness  used  to  visit  the  house  of  decedent  from  the  time 
she  was  a  child  and  spent  weeks  there  together.  Decedent 
and  her  first  husband  used  to  quarrel  at  times  in  regard  to 
his  drinking.  On  such  occasions  each  indulged  high  words 
and  low  language.  Decedent  had  a  quick  temper  and  when 
she  was  cross  she  swore  and  cursed  at  anybody  at  whom  she 
was  angry.  ITer  habits  were  always  the  same  as  wife  and 
widow  and  wife  again;  she  was  very  nervous;  she  had  dys- 
pepsia and  indigestion  and  stomach  troubles;  when  feeling 
well  she  was  very  nice  and  pleasant  to  everyone.  When  she 
became  the  wife  of  Mr.  Scott  she  often  came  in  to  see  witness 
at  her  home  in  Mountain  View  when  she  got  off  the  train 
on  the  way  to  her  ranch;  she  got  mad  at  witness  frequently 
and  then  would  swear  at  her.  In  the  lifetime  of  the  uncle 
of  Avitness  the  decedent  would  accuse  him  of  keeping  a  woman 
down  town,  and  of  running  with  that  class  of  women.     De- 


294  Coffey's  Probate  Decisions,  Vol.  1. 

cedent  left  her  first  husband  at  one  time  and  went  to  the 
house  of  her  sister,  Mrs.  Garcia,  and  remained  there  until 
Collins  induced  her  to  return  and  sought  to  win  her  by  vari- 
ous kind  acts  and  to  reclaim  her  affection,  and  he  would  take 
her  out  riding  and  thus  reinstated  himself  in  her  good  graces. 
Decedent  was  very  fond  of  dress  and  dressed  younger  than 
her  age.  She  began  taking  the  massage  treatment  while  she 
was  a  widow.  As  to  her  sanity,  witness  thought  she  was  sane ; 
she  was  smart  in  business  ways. 

Mrs.  Swall  was  a  witness  for  proponent  and  is  the  wife  of 
George  Swall  and  lived  for  a  part  of  the  time  with  her  sister, 
who  before  her  decease  was  the  wife  of  the  present  husband 
of  witness  and  had  charge  of  the  children,  of  whom  she  is 
stepmother  and  aunt,  and  who  are  minors  and  legatees  un- 
der the  will  in  contest.  Witness  used  to  live  off  and  on  for 
years  with  her  uncle,  Salvin  Perry  Collins,  and  subsequently 
for  some  time  with  his  widow,  and  she  says  that  Mr.  Collins 
was  a  kind  and  courteous  gentleman.  He  seldom  quarreled 
or  gave  offense  to  anyone.  Mrs.  Collins  was  not  an  untruth- 
ful woman,  but  her  temperament  was  excitable.  She  did  ac- 
cuse witness  of  trying  to  poison  her,  which  witness  denied, 
and  she  thinks  that  decedent  believed  her,  although  she  after- 
ward repeated  the  accusation.  Decedent  said  that  Mr.  Scott 
was  trying  to  poison  her  and  trying  to  put  her  in  an  insane 
asylum.  Witness  asked  her  why  she  married  him,  and  she 
said  it  was  in  a  business  manner,  as  she  wanted  somebody 
to  attend  to  her  affairs  and  she  thought  he  was  capable,  but 
she  found  he  was  very  different.  Decedent  did  say  that  Mr. 
Scott  was  running  after  other  women ;  but  did  not  specify 
any  particular  person.  She  had  made  similar  remarks  about 
Mr.  Collins,  her  first  husband.  She  said  that  Scott  was  try- 
ing to  get  her  out  of  the  way  and  that  he  had  told  her  that 
all  that  he  had  married  her  for  was  her  money. 

Mrs.  Helen  Louise  Gerrish,  a  niece  of  decedent  and  a  daugh- 
ter of  her  sister,  Mrs.  Frank  Garcia,  knew  Mrs.  Scott  always. 
The  witness  lived  in  San  Francisco  prior  to  her  marriage, 
which  was  in  1881,  and  from  that  time  went  and  lived  north 
in  Port  Townsend,  in  the  state  of  Washington.  During  that 
period  she  made  frequent  visits  here,  about  every  year,  three 


Estate  op  Scott.  295 

months  at  a  time;  one  visit  was  for  four  months.  Witness 
met  decedent  always  on  her  visits.  Remembers  her  when  she 
Avas  Mrs.  Collins,  but  he  died  before  witness  was  married; 
is  now  forty-two  years  of  age.  When  she  was  a  girl  she  often 
went  to  visit  IMr.  and  Mrs.  Collins;  knew  of  their  having 
difficulties.  Decedent  was  suspicious  of  her  husband,  'Mr. 
Collins.  Once  she  went  away  from  him  and  came  over  to 
the  house  of  the  mother  of  witness  and  remained  there  three 
months.  Mr.  Collins  used  to  come  there  to  visit  his  wife 
and  finally  induced  her  to  return  home.  Decedent  did  net 
enjoy  good  health:- she  had  stomach  troubles  and  dyspepsia. 
Saw  her  when  she  was  suffering  many  times  while  she  was  a 
wife  and  after  she  became  a  widow.  Saw  her  at  such  times 
exhibit  a  violent  temper  when  she  was  the  wife  of  ]\Ir.  Col- 
lins, also  when  she  was  his  widow  and  when  she  became  the 
wife  of  Mr.  Scott.  Never  saw  her  break  anything  in  her 
transports  of  passion,  but  she  would  swear  and  curse  and 
have  trouble  with  the  servants.  Decedent  had  to  be  strict  in 
diet.  Witness  thought  she  was  perfectly  sane.  Mrs.  Ger- 
rish  was  also  a  witness  for  proponent. 

It  should  seem  from  these  testimonies  coming  from  inti- 
mate kin  that  the  decedent's  peculiarities  of  behavior  were 
of  long  standing,  and  that  for,  twenty-seven  years  at  least, 
according  to  her  niece,  Mrs.  Meily,  she  was  habituated  to  for- 
bidden forms  of  discourse  in  colloquial  converse,  and  that 
there  is  no  line  of  demarcation  to  be  drawn  at  or  after  the 
time  of  second  marriage. 

These  eccentric  habits  of  speech  were  not  suddenly  ac- 
quired, and  are  not,  therefore,  to  be  considered  as  presump- 
tive evidence  of  insanity:  Taylor's  Medical  Jurisprudence, 
632. 

Mr.  Shurtleff.  however,  insists  that  it  cannot  he  said  that 
this  woman  manifested  merely  eccentricities,  and  that  her 
acts  and  language  are  much  more  serious  in  their  relation 
to  insanity  than  eccentricity,  which  is,  according  to  the  defin- 
ition of  Dr.  Hatch,  a  peculiarity  of  character  pertaining  to 
an  individual,  and  may  be  marked  by  strong  or  weak  indi- 
vidualitv.  where,  as  Dr.  Maudsley  says,  the  person  does  not 


296  Coffey's  Probate  Decisions,  Vol.  1. 

run  in  the  common  tracks  of  thought  and  feeling,  yet  is  not 
insane:  Mauclsley's  Pathology,  59. 

Maudsley  remarks  that  eccentricities  of  this  sort  may  be 
of  all  kinds  and  degrees,  from  mild  and  odd  to  grotesque 
and  silly,  running  through  a  scale  reaching  from  actual  in- 
sanity to  the  borderland  of  genius;  on  the  one  hand  it  may 
ripen  into  insanity  when  it  is  not  counterbalanced  by  a 
strong  judgment  which  fits  the  individual  to  weigh  things, 
himself  included,  in  their  just  proportions  from  the  outside, 
and,  if  need  be,  to  satirize  himself  as  a  fool  among  fools. 
In  Dr.  Taylor's  Medical  Jurisprudence  it  is  said  that  an  eccen- 
tric man  may  be  convinced  that  what  he  is  doing  is  absurd 
and  contrary  to  the  general  rules  of  society,  but  he  professes 
to  set  these  at  defiance.  In  eccentricity  there  is  the  will  to 
do  or,  not  to  do.  Eccentric  habits  suddenly  acquired  are, 
however,  presumptive  of  insanity. 

Instances  and  illustrations  of  eccentricities  in  individuals 
otherwise  noted  for  intellectual  excellence  may  be  numerously 
cited,  such  as  Dr.  Samuel  Johnson's  habit  of  touching  all 
the  lamp-posts  in  Fleet  street.  Balfour  Browne  says  that 
as  long  as  this  was  merely  automatic  it  was  an  eccentricity, 
but  when  it  came  to  demand  an  expenditure  of  energy  it  be- 
came insanity:  Browne's  Medical  Jurisprudence  of  Insan- 
ity, sec.  255. 

A  man  ever  so  eccentric  will  generally  reason  calmly  and 
rationally  upon  the  subjects  upon  which  he  entertains  pecu- 
liar views ;  but  a  monomaniac  will,  upon  an  attempt  to  rea- 
son with  him,  become  excited,  and  reject  all  reason  because 
the  delusion  takes  full  control  of  his  reasoning  powers;  he 
is  unable  to  reason  upon  a  subject;  the  delusion  is  dominant 
over  all  the  other  faculties ;  but  in  a  mere  eccentric  the  con- 
trary occurs,  and  he  is  even  amused  and  laughs  at  his  own 
oddities.  Many  examples  of  eccentricity  in  men  of*  high  sta- 
tion and  of  large  mental  calibre  may  be  recalled  from  ex- 
perience or  reading,  such  as  dispensing  with  some  nonessen- 
tial article  of  attire,  or  what  may  be  deemed  superfluous  ap- 
panage of  apparel,  such  as  a  necktie  or  collar,  as  in  the  case 
of  the  governor  of  Massachusetts,  George  N.  Briggs,  who  was 
for  six  terms  a  representative  in  Congress,  and  never  wore 


Estate  of  Scott.  297 

a  collar,  or  in  the  instance  of  a  local  celebrity,  noted  as  a  pub- 
licist and  orator,  who  uniformly  dispenses  with  a  necktie; 
but  tested  by  any  definition  of  eccentricity,  suspicion  that 
she  would  be  poisoned  by  her  husband  or  by  those  whom  he 
might  induce  to  do  so ;  that  he  and  others  were  attempting 
to  place  her  in  an  insane  asylum ;  that  he  was  unfaithful  to 
her, — all  of  Avhich  suspicions  were  unfounded,  cannot  be  said 
to  be  eccentricities :  they  plainly  indicated  a  diseased  condi- 
tion of  the  mind,  so  far  as  her  husband  was  concerned.  These 
were  well-defined  insane  delusions,  and  they  operated  upon 
the  testamentary  act.  Suspicions  may  be  entertained  to  such 
a  degree  as  to  render  one  insane.  As  said  by  the  expert  wit- 
ness, Dr.  F.  W.  Hatch,  often  these  delusions  arise  from  mis- 
interpreted suspicions,  and  the  gradual  building  up  of  those 
suspicions  finally  results  in  a  fixed  delusion. 

Dr.  Hatch  is  eminent  in  his  profession,  and  for  several 
years  has  been  connected  with  the  management  of  insane 
asylums  in  this  state,  and  is  at  this  time  in  chief  direction 
of  all  the  hospitals  for  the  insane  in  California,  and  he  has 
given  it  as  his  opinion,  predicated  upon  the  accuracy  of  the 
hypothetical  questions,  that  the  decedent  was  insane  and 
possessed  of  three  fixed  delusions:  (1)  That  her  husband  was 
unfaithful  to  her;  (2)  That  he  was  trying  to  poison  her;  (3) 
That  he  was  trying  to  put  her  in  an  insane  asylum ;  and 
that  if  such  delusions  continued  for  years  they  would  consti- 
tute habitual  insanity.  Dr.  Hatch  says  that  it  is  a  fact  that 
a  person  of  ordinary  perception  may  be  acute  and  accurate, 
with  a  retentive  memory,  his  statements  reliable  in  the  main, 
and  even  his  judgment  on  matters  connected  with  his  pecu- 
liar train  of  delusions,  belief,  or  feeling,  accepted  as  trust- 
worthy, but  notwithstanding  this  mental  activity  he  may  har- 
bor delasions,  not  always  exposed  in  casual  conversations, 
which,  may  be  called  forth  by  anyone  cognizant  of  their  ex- 
istence and  of  his  cerebral  conditions,  and  all  the  authorities 
so  hold,  and  such  has  been  the  personal  observation  and  ex- 
perience of  Dr.  Tlatcli  himself:  1  Beck's  IMedical  Jurispru- 
dence, 729. 

Expert  evidence  is  really  an  argument  of  the  expert  to  the 
court,  and  is  valuable  only  with  regard  to  .the  proof  of  tlie 


298  Coffey's  Probate  Decisions,  Vol.  1. 

facts  and  the  validity  of  the  reasons  advanced  for  the  con- 
clusions; therefore,  if  we  find  the  facts  assumed  in  the  ques- 
tion to  be  unsupported  by  proofs  in  any  essential  particular 
the  conclusion  must  be  rejected;  so  it  must  be  with  the  tes- 
timony of  Dr.  Hatch  if  it  shall  appear,  when  the  grounds 
are  tested,  that  there  is  no  adequate  reason  for  his  opinion. 

Each  side  in  this  case,  as  in  all  others  of  like  kind,  chooses 
to  criticise  evidence  of  this  character  and  to  suggest  that  the 
average  expert  is  necessarily  a  partisan  in  the  case.  It  is 
not  necessary,  however,  to  asperse  the  integrity,  intellectual 
or  moral,  of  any  professional  gentleman  called  upon  to  tes- 
tify herein ;  it  is  sufficient  to  allude  to  the  commonplaces  of 
judicial  expression  that  no  tribunal  would  be  justified  in  de- 
ciding against  the  capacity  of  the  testatrix  upon  the  mere 
opinion  of  witnesses,  however  numerous  or  respectable,  and 
that  it  is  the  province  and  the  duty  of  the  court  or  jury  to 
draw  the  inference  of  fact  from  the  evidence  before  them 
regulated  by  the  rules  of  law — being  assisted  but  not  super- 
seded in  that  function  by  the  opinions  of  experts :  In  re  Red- 
field,  116  Cal.  655,  48  Pac.  794. 

Dr.  Hatch  says  that  monomania  or  partial  insanity  is  char- 
acterized by  some  peculiar  illusion  or  erroneous  conviction 
imposed  upon  the  understanding  and  giving  rise  to  a  partial 
aberration  of  judgment,  and  the  individual  thus  affected 
would  be  rendered  unable  to  think  correctly  on  subjects  con- 
nected with  the  particular  illusion,  while  in  other  respects 
he  would  not  betray  any  palpable  disorder  of  the  mind;  this 
is  according  to  authority  and  is  the  result  of  this  doctor's 
experience :  Hammond  on  Insanity,  13-24. 

It  is  a  fact  that  in  conversing  with  patients  on  topics  for- 
eign to  their  delusions  one  will  find  no  difference  between 
them  and  other  persons  untainted  by  mental  malady;  they 
seem  sane  on  all  subjects  until  one  strikes  the  spring  which 
is  the  source  of  their  intellectual  disturbance :  Ray,  sec.  285. 

In  the  case  assumed  in  th>e  hypothetical  questions  pro- 
pounded by  counsel  for  contestant,  where  a  woman  born  and 
reared  in  respectable  circumstances,  fairly  well  educated,  and 
surrounded  by  wealth  and  luxury,  with  all  the  advantages 
of  wealth  and  position  enjoyed  by  her  for  many  years,  mani- 


Estate  of  Scott.  299 

fests  at  an  advanced  period  of  life,  say  at  the  age  of  fifty  or 
sixty  years,  a  complete  revolution  in  her  external  character, 
and  frequently,  when  under  excitement,  and  at  other  times 
when  calm,  and  without  apparent  cause  or  reason,  both  in 
the  presence  of  servants  and  of  acquaintances  and  compara- 
tive strangers,  indulges  in  vulgar,  profane,  obscene  and  blas- 
phemous language,  breaks  dishes  and  smashes  things  gener- 
ally, and  goes  around  naked  and  unadorned,  and  perpetrates 
other  acts  and  antics  of  an  abnormal  character,  she  is  insane. 
Dr.    Hatch's   answers   to   the   hypothetical   questions   pro- 
pounded to  him  were  based  upon  his  understanding  that  the 
phenomena   presented  therein   appeared   after  the  marriage 
of  the  lady  to  Mr.  Scott.     He  took  it  from  that  time  as  to 
one  of  the  hypothetical  questions,  the  first  question  went  be- 
fore her  marriage  to  IMr.  Scott,  to  1884  or  1887  or  somewhere 
along  there;  but  he  took  the  whole  business  of  it,  and  his 
judgment  of  her  mental  state  proceeded  on  the  accuracy  of 
the  assumptions   postulated  in  the   entire   proposition.     His 
conclusion  was  dependent  upon  their  truth;  if  the  hypotheti- 
cal questions  were  so  framed  as  to  show  that  for  many  years 
she  had  been  obscene  in  her  language,  violent  in  her  conduct, 
profane,  suspicious  of  her  servants,  and  of  everybody  around 
her.  charging  her  former  husband  in  his  lifetime  with  im- 
moral conduct  and  infidelity,  and  that  for  long  years  she  had 
been  drinking  to  excess,  such  facts  should  be  taken  into  con- 
sideration and  would  affect  the  conclusion  as  to  her  sanity; 
and  if  it  should  appear  that  her  associations  had  been  mainly 
and  almost  entirely  with  her  servants  and  with  men  whose 
customary  conversation  was  unrefined,  and  that  for  a  quar- 
ter of  a  century  prior  to  1896  she  had  been  suspicious,  irri- 
table, annoyed  at  trifles,  unable  to  retain  domestics  on  ac- 
count of  her  crankiness,  and  that  she  had  been  during  this 
period  immodest  at  times  in  her  deportment,  .all  these  facts 
would  be  taken  into  estimation  as  lessening  the  importance  of 
the  symptoms.  ' 

Dr.  H.  N.  Eueker,  an  accomplished  physician  and  surgeon, 
now  president  of  the  board  of  health  in  Oakland,  and  for- 
merly for  a  term  of  four  years  superintendent  of  the  Stock- 
ton Asylum,  and  three  years  and  upward  director  of  that  in- 


800  Coffey's  Probate  Decisions,  Vol.  1. 

stitution  and  now  engaged  in  general  practice,  but  continu- 
ous in  his  special  studies  of  insanity  and  often  called  in  con- 
sultation in  such  cases,  concurs  in  the  opinion  expressed  by 
Dr.  Hatch,  that  a  person  such  as  is  described  in  the  hypo- 
thetical questions  must  be  insane.  Dr.  Rucker  says  that  such 
a  person  would  have  habitual  mania  characterized  by  fixed 
delusions.  In  conversation  with  insane  persons  there  is  no 
difference  between  them  and  others  in  speaking  on  topics 
foreign  to  their  delusions;  that  is  to  say,  this  is  true  of  per- 
sons possessed  of  delusions  upon  certain  subjects,  or  mono- 
maniacs. Of  course,  in  answering  hypothetical  questions,  the 
correctness  of  the  premises  is  assumed. 

In   commenting   upon   this   evidence,   Mr.    Shurtleff   natu- 
rally lauded *his  own  side  and  said  that  the  testimony  com- 
ing from  the  other  side  of  an  expert  character  showing  at 
the  times  they  came  in  contact  with  her  she  was  rational,  is 
of  no  importance,  when  it  appears  that  their  acquaintance 
was  of  a  slight  and  casual  kind,   not  aftording  an  oppor- 
tunity to  judge  of  her  mind  from  all  around  observation. 
These  mere  business  acquaintances,    seeing    her    for    a    few 
minutes  only  at  a  time  and  then  on  some  special  subject, 
foreign  to  her  delusion,  are    clearly   inferior    in    value    and 
weight,  and  cannot  furnish  a  safe  criterion  to  establish  a  con- 
clusion of  sanity ;  they  did  not  see  her  in  circumstances  cal- 
culated to  enable  them  to  form  an  intelligent  opinion  of  her 
calibre  or  capacity.     A  person  possessed  must  be  under  ob- 
servation for  some  time  and  under  a  variety  of  conditions  in 
order  that  her  delusion  may  be  detected.  An  insane  delusion 
may  be  concealed  from  many  who  occasionally  meet  a  person 
and  whose  conversation  and  observation  are  contracted  by 
the  circumstances  of  the  occasion,  while  a  few  who  are  within 
a  closer  social  circle  with  superior  chances  for  inspection  of 
all  sides  of  the  subject  will  be  better  able  to  pronounce  a 
more  perfect  opinion,  because  the  delusion  is  more  liable  to 
develop  itself  under  the  provocation  or  inducement  of  gen- 
eral or  protracted  and  local  intercourse  in  the  home  circle, 
where  the  conventional  circumspection  and  guards  which  ob- 
tain  outside   are   not   always  maintained.     At  home,   where 
she  was  at  ease,  she  spoke  freely;  abroad  on  business  she 
kept  a  guard  on  her  mouth. 


Estate  of  Scott.  301 

It  were  well  if  she  could  have  pursued  the  precept  of  the 
preacher  and  practiced  his  lesson  of  virtue  always  and 
everywhere,  at  home  and  abroad,  to  set  guard  on  her  mouth, 
a  sure  seal  upon  her  lips,  that  she  might  not  fall  by  them, 
and  her  tongue  destroy  her  not,  and  that  she  might  have 
put  up  her  petition  as  did  David,  when  he  cried  out, — 

"Set 'a  watch,  O  Lord,  before   my  mouth; 
And  a  door  round  about  my  lips; 
Incline  not  my  heart  to   evil  words, 
To  make  excuses  in  sins. ' ' 

But  she  cared  little,  according  to  all  accounts,  for  preacher 
or  psalmist,  and  preferred  a  tongue  sharpened  like  a  ser- 
pent with  the  poison  of  adders  under  her  lips. 

That  decedent  uttered  apprehensions  of  being  poisoned 
and  implicated  Scott  appears  from  the  evidence.  In  1889 
she  made  statements  to  that  effect  to  Mrs.  Meily  and  A.  E. 
Ball;  in  1890  to  Lloyd  Scott,  Wesley  Scott  and  Mrs.  Paisley: 
in  1890-91  to  Joseph  INTortier,  and  from  1890  to  1897  to  Geo. 
F.  Dyer;  in  1891  to  Major  Hammond,  Miss  Richards,  and  T. 
H.  Froelich;  in  1892  to  John  A.  O'Dea  and  Thomas  Talman; 
in  1893  to  Revilo  F.  Morton ;  in  1895  to  Mrs.  Ogilvie  and  Miss 
Anderson;  in  1896  to  Mrs.  Cook,  and  in  1897  and  1896  to 
Miss  Gustafson;  in  1897  to  William  Warwick,  Mrs.  Burn- 
ham,  Dr.  Spencer,  Dr.  Mays.  Dr.  Spencer  examined  mat- 
ter for  poison,  at  request  of  Dr.  Greth,  who  took  the  mat- 
ter for  examination  at  instance  of  Mrs.  Scott.  Many  of  the 
witnesses  for  proponents  testified  to  similar  statements;  in 
1891-93  Mrs.  Scott  so  spoke  to  Edward  Lewis  Brown;  stie 
also  made  mention  of  her  fear  of  poisoning  to  several  others 
on  the  same  side,  Mrs.  Gerrish,  Mrs.  Putman,  Mrs.  Nellie 
Swall,  and  in  1897  to  Wealthy  Wormell.  A.  E.  Ball  tes- 
tified that  she  made  the  remark  to  him  that  she  had  to  keep 
her  whisky  under  lock  and  key  to  keep  it  from  being  poi- 
soned, for  she  was  afraid  that  somebody  whould  put  poison,  or 
something  of  that  kind  in  it.  Lloyd  Scott  said  that  she 
complained  that  his  father  was  trying  to  poison  her,  that 
he  would  get  the  cook  to  do  it  for  $10.  Lloyd  and  his 
brother  Wesley  always  tasted  her  food  at  the  table  at  her 
request  to  see  if  it  was  poisoned;  she  claimed  her  whisky 


302  Coffey's  Probate  Decisions,  Vol.  1. 

had  been  poisoned  with  arsenic.  Lloyd's  brother,  Wesley, 
testified  she  said  his  father  was  trying  to  poison  her,  and 
he  used  to  have  to  taste  her  food  every  day  to  see  if  there 
was  poison  in  it.  He  thinks  it  was  about  the  month  of  July, 
1890,  when  he  came  back  from  New  York  when  he  first 
heard  Mrs.  Scott  say  that  his  father  was  trying  to  poison 
her;  she  talked  about  it  most  every  day.  In, cross-examina- 
tion Wesley  modified  his  statement  about  having  to  taste 
the  food  every  day,  and  said  that  his  stepmother  would  have 
periods  of  two  or  three  months  that  she  would  make  him 
taste  it,  and  then  the  rest  of  the  time  she  would  not  care 
about  it.  This  might  seem  to  show  a  suspension  of  the 
alleged  delusion  for  nine  or  ten  months  at  a  time.  So  in 
regard  to  this '  item,  it  was  not  continuous,  persistent,  or 
fixed. 

Mrs.  Paisley  said  that  Mrs.  Scott  stated  that  there  was 
poison  in  her  food,  principally  mush.  Mrs.  Paisley  could  not 
tell  how  frequently  this  statement  was  made  to  her  by  Mrs. 
Scott. 

Joseph  Mortier  testified  that  she  said  Mr.  Scott  was  try- 
ing to  poison  her,  this  was  some  time  after  Scott  came  back 
from  New  York,  in  the  latter  part  of  1890  or  1891 ;  she 
said  it  at  different  times  during  that  period. 

George  F.  Dyer  testified  that  she  accused  Scott  of  trying 
to  poison  her.  Dyer  went  to  her  house  one  morning;  she 
sent  for  him  and  she  sent  word  downstairs  that  she  was  sick 
and  wanted  him  to  come  upstairs,  and  she  said  that  she  had 
been  poisoned  by  Scott  or  somebody  else  in  the  household 
that  he  had  employed  to  do  it.  She  said  her  husband  was 
trying  to  get  away  with  her,  trying  to  kill  her,  to  get  her 
property  and  poison  her. 

A.  C.  Hammond  testified  that  she  said  that  she  was  afraid 
of  her  life,  except  for  the  presence  of  the  children  she  did 
not  know  that  she  would  be  safe  from  poisoning.  This  was 
in  a  conversation  Math  Mrs.  Scott  in  1891,  relative  to  her 
husband;  the  second  or  third  interview  Hammond  had  with 
her,  somewhere  about  August,  1891,  she  spoke  of  the  use  of 
poison  by  her  husband. 

Miss  Kichards  said  that  Mrs.  Scott  said  that  they  intended 
to  poison  her,  accusing  Mr.  Scott  and  those  all  around  her. 


Estate  of  Scott.  303 

Theodore  Froelich  said  she  told  him  that  Scott  and  Mr. 
Ball  were  poisoners;  this  was  in  1890  or  1891. 

John  O'Dea  testified  that  she  said  the  people  were  trying 
to  poison  her  and  did  want  to  poison  her.  Thomas  Talman 
testified  that  she  said  Mr.  Scott  or  some  one  else  was  trying 
to  poison  her.  She  asked  Talman  if  he  would  taste  the 
milk;  he  tasted  it  and  said  that  there  was  nothing  the  mat- 
ter with  it  at  all.  She  said  to  this  witness  that  he  would 
poison  her  as  quick  as  anybody,  to  which  the  witness  replied 
that  he  had  no  object  in  poisoning  her,  because  he  did  not 
think  that  she  would  ever  leave  him  anything. 

To  Revilo  F.  Morton  in  1893  she  said  that  Scott  was  try- 
ing to  poison  her,  and  that  she  had  been  poisoned  before 
Morton  knew  her. 

To  Mrs.  Ogilvie  she  accused  Scott  of  having  put  some- 
thing in  her  enema  several  times.  Mrs.  Ogilvie  would  be 
there  fixing  tea  for  her  and  she  told  her  to  hide  it  for  fear 
Scott  would  put  something  in  it. 

To  Ulrica  Anderson  she  said  he  tried  to  poison  her.  Ulrica 
had  to  take  an  egg  every  morning  and  beat  it  in  her  room, 
so  that  he  should  not  be  "able  to  poison  it ;  she  had  to  taste 
her  food  so  that  no  poison  could  be  in  it.  Mrs.  Scott  was 
afraid  there  was  poison  in  it.  She  charged  Mr.  Scott  with 
trying  to  poison  her.  Ulrica  had  tasted  the  food  before 
Mrs.  Scott  ate  it  and  was  none  the  worse  for  it. 

To  Mrs.  Cook  decedent  said  that  Scott  would  poison  her 
whisky.  Mrs.  Scott  kept  the  whisky  locked  up  and  used  a 
little  every  morning  with  an  egg. 

To  Ida  Gustafson  she  said  he  tried  to  poison  her  and  she 
used  to  ask  Ida  to  taste  her  beef  tea  for  her.  She  would 
accuse  Mr.  Scott  of  poisoning  her  steak  and  her  beef  tea, 
and  Ida  would  have  to  taste  it  in  the  mornings  before  ^Irs. 
Scott  would  drink  it.  IMrs.  Scott  said  that  it  would  not 
affect  Ida  as  she  was  stronger  than  herself. 

Mrs.  Scott  asked  William  Warwick  if  he  thought  that 
Scott  would  put  any  poison  or  anything  into  her  liquor  when 
she  drank. 

Mrs.  l^urnham  testified  that  Mrs.  Scott  would  talk  to  her 
about  how  ]\Ir.  Scott  was  trying  to  poison  her.  She  thought 
that  the  food  and  almost  everything  she  ate  was  tampered 


304  Coffey's  Probate  Decisions,  Vol.  1. 

with.  She  suspected  that  Mr.  Scott  had  some  one  put 
poison  in  it — if  he  did  not  put  poison  in  it  himself;  that  he 
had  the  cook  or  the  coachman  put  poison  in  it.  Mrs.  Burn- 
ham  always  had  to  taste  Mrs.  Scott's  steak,  her  cream,  or  her 
mush  before  she  would  use  it  herself. 

Dr.  Spencer  testified  to  the  signing  of  a  certificate  to  the 
effect  that  the  articles  brought  to  him  by  Dr.  Greth  at  the 
request  of  Mrs.  Scott  contained  absolutely  no  poisonous  mat- 
ter. Dr.  Maj^s  said  that  Mrs.  Scott  told  him  that  people 
were  trying  to  poison  her  and  that  she  had  some  one  to  taste 
her  food  before  she  would  eat  it.  Dr.  Greth  took  the  arti- 
cles in  the  certificate  signed  by  Dr.  Spencer  at  Mrs.  Scott's 
request,  because  she  begged  him  to  have  it  done  for  her. 
These  were  all  witnesses  for  contestant. 

To  Edward  Lewis  Brown,  a  witness  for  proponent,  she 
made  a  statement  that  some  one  was  trying  to  poison  her 
food.  She  said  she  was  afraid  Scott  would  poison  her,  and 
she  gave  as  a  reason  that  Scott  was  a  young  man  and  she 
was  an  old  woman,  and  she  thought  that  therefore  he  would 
try  and  poison  her,  and  that  he  was  no  husband  to  her. 
Mrs.  Helen  Gerrish  says  she  heard  Mrs.  Scott  say  she  thought 
Mr.  Scott  might  poison  her.  She  accused  Mrs.  Nellie  Swall  of 
trying  to  poison  her  and  made  this  lady  sometimes  taste  her 
food.  Mrs.  Swall  told  her  that  she  was  not  trying  to  poison 
her,  and  thinks  she  believed  her,  although  she  afterward 
repeated  the  accusation  and  she  talked  to  her  about  Scott's 
trying  to  poison  her.  Mrs.  Scott  told  Mrs.  Swall  as  a  rea- 
son w^hy  she  thought  Mr.  Scott  was  trying  to  poison  her  was 
that  he  was  after  her  money;  that  he  married  her  for  her 
money  and  was  trying  to  get  her  out  of  the  way.  She  told 
her  this  down  at  the  house  in  Mountain  View  the  year  Scott 
returned  from  the  east  after  doing  some  business  for  her. 

Wealthy  Wormell  heard  Mrs.  Scott  say  once  there  might 
be  poison  in  the  food ;  she  did  not  say  who  might  be  poison- 
ing her  food. 

Mrs.  Scott  told  Mrs.  Putman  that  Scott  had  been  trying 
to  poison  her. 

Mr.  Grossman  does  not  remember  much  about  any  state- 
ment of  the  kind,  although  he  might  have  heard  something, 
but  found  it  hard  to  "memorize"  anything. 


Estate  of  Scott.  305 

It  is  claimed  by  counsel  for  contestant  that  the  delusions 
existing  in  the  mind  of  the  decedent  as  to  Scott's  unfaith- 
fulness to  his  marriage  vows  with  servant  maids  and  other 
women  and  as  to  a  conspiracy  to  send  her  to  an  insane 
asylum  are  also  established  by  these  witnesses,  whose  testi- 
mony may  here  be  summarized  in  these  respects: 

Miss  Ulrica  Anderson  was  employed  by  INIrs.  Scott  at  her 
house  in  this  city  as  an  upstairs  girl;  went  there  in  April  in 
1895,  and  left  there  in  August,  1895.  Mrs.  Scott  was  a 
woman  of  very  violent  temper  and  used  coarse  language. 
Ulrica  was  her  maid.  Mrs.  Scott  M^as  in  the  habit  of  using 
oaths  and  obscene  words :  she  would  fly  into  a  passion  and 
become  wild,  tear  her  hair,  slap  her  face,  pound  the  tables, 
and  break  articles,  throw  them  down  on  the  floor,  smash 
crockery,  whatever  was  near  at  hand;  any  trifle  would  start 
her.  She  was  most  excitable,  a  proud  and  vain  woman,  very 
vain  of  her  personal  charms;  she  would  at  times  undress 
and  dance  before  her  mirror  and  display  her  figure  in  that 
manner  with  evident  self-admiration ;  she  had  a  fine  form, 
and  soft,  white  skin,  clear  and  free  from  blemish,  tall  and 
well  developed,  proportions  ample  without  angles,  easy 
curves;  she  had  massage  treatment,  not  from  her  maid,  but 
from  a  regular  masseur ;  she  was  very  jealous  of  Mr.  Scott ; 
she  was  anxious  to  obtain  some  knowledge  of  wrongdoing 
on  his  part;  she  said  she  would  give  Ulrica  $1,000  if  the 
maid  would  try  to  inveigle  him  into  sleeping  with  her,  but 
the  girl  declined  to  engage  in  any  such  enterprise  and  told 
her  that  she  was  virtuous  and  would  not  allow  herself  to 
entertain  so  vile  a  proposition.  Mrs.  Scott  was  quick-tem- 
pered, strong-minded,  obstinate,  violent  in  her  anger ;  and  she 
broke  out  constantly  and  without  cause,  but  Mr.  Scott  was 
a  modest  and  nice  gentleman. 

Mrs.  Estella  Burnham,  who  is  now  living  at  1743  Franklin 
street,  the  Scott  mansion,  knew  the  late  Mrs.  Scott  and  was 
engaged  as  her  maid  from  June  18,  1897,  to  the  summer  of 
that  year,  and  was  with  her  from  6  o'clock  in  the  morning 
until  9,  10,  or  even  11  o'clock  at  night  when  she  retired. 
She  spent  her  nights  at  the  house  of  Mrs.  Scott  and  had  a 
separate  bedroom.  Mrs.  Scott's  constant  topic  was  the  sup- 
posed infidelity  of  IMr.  Scott,  whom  she  accused  of  unfaith- 

Prob.  Dec,  Vol.  I — 20 


306  Coffey's  Probate  Decisions,  Vol.  1. 

fulness  with  the  various  girls  in  service  and  also  with  a  ]\Irs. 
Meily,  a  niece  of  her  own,  and  with  a  Mrs.  Paisley,  a  sister 
of  her  first  husband,  an  elderly  lady.  Mrs.  Scott  never  ac- 
cused Mrs.  Burnham  to  her  face,  but  she  did  say  that  all 
women  were  bad  and  that  she  would  not  trust  any  woman, 
and  that  she  would  give  $1,000  to  any  girl  who  would  seduce 
Scott  so  that  she  could  catch  him  in  the  act.  She  just 
suspected  that  Scott  was  running  around  all  the  time  with 
the  women  when  he  was  down  at  the  ranch,  that  was  her 
sole  subject  of  conversation  from  morning  until  night.  She 
was  always  talking  of  her  suspicions  of  her  husband's  in- 
fidelity and  of  his  poisoning  of  her  and  putting  poison  in 
her  food  and  drink,  and  Mrs.  Burnham  had  to  taste  what 
Mrs.  Scott  ate  and  drank  before  she  would  touch  anything 
for  fear  of  poison.  There  was  nothing  of  the  kind  in  reality, 
no  poison  in  the  house ;  there  was  not  the  least  provocation 
for  her  spells.  Mrs.  Burnham  could  always  tell  in  advance 
in  the  morning  when  Mrs.  Scott  was  going  to  have  a  bad 
day;  her  eyes  would  show  when  she  slept  ill  and  she  would 
be  wild  in  her  appearance,  and  then  they  would  have  a  time. 
She  was  always  harping  on  the  same  subject — Scott's 
amours.  She  was  desirous  of  finding  out  whether  he  was 
really  true.  After  Mrs.  Burnham  left  on  the  4th  of  De- 
cember, 1897,  she  visited  the  house  several  times  but  did  not 
return  to  the  service  during  the  lifetime  of  the  decedent. 
While  she  was  there  witness  was  asked  by  Mrs.  Scott  to  act 
as  a  detective  three  times  in  two  weeks,  and  pretended  to 
comply  and  put  on  a  sort  of  disguise  and  went  out  and  came 
back  without  any  discovery,  but  made  no  attempt  to  pursue 
him,  as  she  would  not  do  so  except  by  way  of  pleasing  Mrs. 
Scott,  as  she  was  in  her  employ  and  necessitated  to  make 
this  pretense  of  watching  him  to  retain  her  situation;  so  she 
consented  to  play  the  part. 

Frederick  J.  Bockwoldt  was  foreman  of  the  Scott  ranch 
in  Mountain  View  for  a  while.  Mrs.  Scott  used  to  send  for 
him  to  come  to  her  room  every  time  she  came  down  to  the 
ranch  to  talk  with  her.  He  often  went  and  spent  an  hour 
or  two  at  a  time;  at  first  she  would  talk  about  biLsiness,  but 
after  a  while  she  would  converse  about  Scott,  and  said  she 
believed  that  he  was  unfaithful  to  her  with  certain  ladies 


Estate  of  Scott.  307 

in  the  vicinity,  and  she  asked  Boekwoldt  to  find  out  if  this 
was  not  true.  He  told  her  that  Scott  never  went  off  the  ranch 
except  accompanied  by  him  and  Lloyd.  Mrs.  Scott's  con- 
duct was  immodest  in  the  extreme,  and  she  would  talk  in 
the  most  shocking  manner. 

When  Mr.  Scott  was  in  the  east  Mrs.  Scott  sent  for  A.  E. 
Ball  and  complained  of  Scott's  infidelity  and  that  he  was 
running  with  other  women,  and  that  he  had  taken  a  woman 
east  with  him,  in  1889. 

Mrs.  Cook  worked  for  Mrs.  Scott  in  1896 ;  was  employed 
as  a  servant  doing  the  upstairs  work.  Mrs.  Scott  was  in  the 
habit  of  using  very  bad  language,  and  said  that  Mr.  Scott 
was  running  after  every  woman  in  the  city;  she  said  she 
never  could  keep  any  girl  more  than  a  month,  then  they 
slept  with  Mr.  Scott.  She  wanted  her  to  sleep  with  him, 
offered  to  give  her  money  if  she  would  do  so,  but  Mrs.  Cook 
told  her  that  she  did  not  want  to  make  money  that  way  and 
refused  to  consider  seriously  her  proposal.  Mr.  Scott  was 
calm  and  considerate  to  all  and  always  tried  to  pacify  his 
Mdfe,  but  she  was  not  to  be  quieted.  She  was  always  talking 
of  Mr.  Scott's  running  with  other  women  and  wanted  to 
catch  him. 

George  F.  Dyer  knew  Mrs.  Scott  from  about  1890  until 
three  or  four  months  before  she  died :  saw  her  as  often  as 
one  hundred  to  one  hundred  and  fifty  times.  In  the 
earlier  times  his  opportunities  of  seeing  her  were  consider- 
able; she  engaged  him  to  sell  her  ranch  in  Santa  Clara;  she 
used  to  get  him  to  call  at  her  house  with  data  about  the 
ranch ;  this  was  about  the  spring  of  1891 ;  perhaps  in  June 
or  July.  Dyer  had  some  purchasers  for  the  property;  she 
said  she  wanted  to  sell;  she  sent  the  persons  down  to  see  the 
property  and  on  their  return  Dyer  entered  negotiations,  and 
when  they  came  to  the  house  to  do  business  she  **flew  off  the 
handle, ' '  and  raised  the  price.  She  talked  to  him  on  a  great 
many  subjects  besides  business;  she  used  to  say  that  she 
was  perfectly  willing  to  sell,  but  she  was  afraid  that  the 
money  would  fall  into  somebody  else's  hands;  she  talked 
about  Scott  running  after  women  and  wanted  to  find  out 
what  he  was  doing;  she  would  send  for  Dyer  down  to  his 
house  to  come  there  at  all  hours  of  the  day  and  sometimes 


308  Coffey's  Probate  Decisions,  Vol.  1. 

at  night  and  wanted  him  to  track  Scott  on  his  alleged  amor- 
ous adventures;  she  said  that  she  suspected  that  Scott  and 
Ball  and  another  man  were  concocting  a  plan  to  rob  her,  and 
she  was  afraid  of  being  poisoned.  Mrs.  Scott  told  Dyer  that 
her  husband  had  said  that  she  was  insane,  and  that  they  were 
trying  to  put  her  into  the  asylum  or  plotting  to  get  rid  of 
her  in  some  way.  Dyer  had  known  Scott  for  fourteen  or 
fifteen  years  and  he  was  always  a  gentlemen  in  his  behavior. 
Mrs.  Scott  would  use  very  coarse  and  indelicate  language, 
obscene  and  vulgar,  and  witness  gave  a  sample  of  the  coars- 
est quality  which  he  said  made  the  hair  stand  on  end.  She 
called  Scott  by  the  most  opprobrious  epithets  before  this 
witness  in  speaking  of  him;  nothing  was  too  vile  or  vulgar 
for  her  tongue;  this  was  from  1890  to  1893.  Her  manner 
of  talking  on  subjects  was  such  that  Dyer  quit  trying  to  do 
business  with  her,  as  he  did  not  consider  her  competent  to 
transact  business.  Dyer  was  invited  to  her  house  to  din- 
ner; she  invited  him  there  to  talk  about  the  ranch  and  then 
asked  him  to  remain  to  dinner.  He  sat  down  to  the  dinner 
table  and  after  two  or  three  minutes  she  ordered  him  up 
and  out  of  the  house  and  he  went  out.  He  saw  no  reason 
for  this  conduct  and  she  gave  none  except  that  he  was  a 
friend  of  Scott  and  that  he  was  trying  to  get  the  ranch 
away  from  her  or  something  of  that  kind.  Dyer  thought 
the  woman  was  crazy;  that  she  did  not  have  her  right  mind; 
and  his  reasons  were  because  she  floated  from  one  proposi- 
tion to  another ;  she  would  take  the  property  away  from  him 
one  day  and  give  it  to  him  the  next,  and  wanted  to  employ 
him  as  a  detective  to  pursue  Scott  and  find  out  and  tell  her 
about  this  woman;  and  she  frequently  visited  Dyer's  house 
— came  down  there  without  any  apparent  cause  whatever. 
She  would  curse  Scott  at  her  own  home  and  she  would  send 
for  Dyer  at  all  hours,  and  when  he  got  there  he  found  there 
was  nothing  to  it,  therefore,  he  thought  she  was  not  a  woman 
of  strong  mind. 

It  appears  that  Dyer  first  made  the  acquaintance  of  Mr. 
Scott  in  1884,  M^hen  the  business  of  witness  was  mining,  and 
that  he  was  intimately  acquainted  with  Mr.  Ball  and  his 
mining  operations  with  him  and  with  Mr.  C.  C.  Tripp,  and 
had  been  to  the  office  occupied  in  common  by  these  gentle- 


Estate  of  Scott.  309 

men  during  all  the  years  since  1884,  and  whenever  he  called 
there  he  always  saw  Mr.  Scott.  Mr.  Ball  told  Mr.  Dyer  that 
Mrs.  Scott  wanted  to  sell  the  ranch,  and  Scott  introduced 
him  to  Mrs.  Scott,  but  he  cannot  recall  who  introduced  him 
to  Mr.  Scott.  Dyer  says  he  was  looking  for  a  piece  of  prop- 
erty and  Mr.  Ball  told  him  that  the  Scott  ranch  was  for  sale. 
Then  Scott  introduced  him  to  his  wife,  and  Dyer  had  a  talk 
with  her  at  that  time  alone,  her  husband  left  after  the  in- 
troduction; Dyer  went  in  with  her  into  the  little  office  off 
the  hall  in  her  house  and  Scott  went  outside  somewhere. 
She  and  Dyer  had  quite  a  talk  for  about  an  hour;  she  did 
not  give  him  a  description  of  the  ranch  but  gave  him  the 
outlines;  she  did  not  seem  to  have  her  mind  made  up  as  to 
price  at  that  time  and  asked  Dyer  to  call  again.  He  went 
back  there  the  next  day  or  a  day  or  two  afterward  alone; 
was  there  about  an  hour  and  a  half  or  two  hours.  Mrs. 
Scott  and  he  were  discussing  the  ranch,  she  going  into  the 
minutest  details  about  all  its  phases  of  income,  area,  acreage, 
number  of  vines,  their  age,  condition  of  improvements,  char- 
acter of  soil  and  climate,  expense  of  operating  ranch,  num- 
ber of  men  employed,  amount  of  machinery  upon  the  prop- 
erty, cooperage,  storage,  the  buildings,  and  all  the  details; 
she  gave  him  a  paper,  a  report  of  all  the  property  and  all 
of  those  items  were  in  it.  The  two  conversed  for  an  hour 
and  a  half  on  that  topic  and  incidentally  on  others. 

Theodore  H.  Froelich,  a  wine  broker,  who  formerly  lived  in 
San  Jose,  and  was  engaged  as  a  wine-maker  there,  knew  Mrs. 
Scott  before  she  married  her  second  husband.  He  had  had 
many  conversations  before  and  after  that  time.  She  told 
him  at  one  time  that  she  had  thoughts  of  getting  married 
again,  and  said  she  was  a  foolish  woman  to  think  of  such 
a  thing.  When  she  married  she  told  Froelich  of  it  and  that 
she  had  met  a  man  to  her  liking,  and  she  introduced  Scott 
to  him,  and  he  told  her  that  he  thought  she  had  made  a 
good  match  and  that  Mr.  Scott  would  make  a  good  husband. 
Froelich  gave  up  his  business  in  San  Jose  in  1891,  and  re- 
turned and  set  up  as  a  broker  in  San  Francisco  in  the  fall 
of  1892.  He  had  been  ten  years  in  business  in  San  Jose 
and  the  acquaintance  begun  with  Mrs.  Scott  there  was  con- 
tinued here.     She  was  frequently  in  his  office  here  on  busi- 


310  Coffey's  Probate  Decisions,  Vol.  1. 

ness;  he  acted  as  her  wine  broker  and  she  called  two  or 
three  times  a  week  and  sometimes  every  day.  Froelich 
handled  her  wane  for  local  and  eastern  markets.  When  she 
called  she  would  often  talk  about  her  domestic  affairs.  She 
was  very  jealous  of  her  husband  and  said  that  he  was 
running  after  other  women  and  that  she  knew  that  he  and 
Ball  had  concocted  a  conspiracy  to  send  her  to  an  insane 
asylum  and  deprive  her  of  her  property.  Her  language 
was  very  vulgar,  profane,  and  obscene  beyond  description. 
She  was  a  good  friend  of  witness  so  far  as  giving  him  the 
business  was  concerned.  One  could  not  cheat  her  for  a  cent, 
but  still  Froelich  did  not  consider  her  a  good  business 
woman.  She  was  mean  and  parsimonious,  and  they  had  a 
quarrel  finally  on  their  business  relations,  which  resulted  in 
a  lawsuit  still  pending. 

Ida  Gustafson  was  employed  as  a  servant  in  the  house  of 
Mrs.  Scott  at  two  different  times,  first  from  October  to  De- 
cember, 1896,  and  last  from  April  to  June,  1897.  Mrs. 
Scott  was  very  rough  in  her  talk  and  Ida  could  not  repeat 
her  language,  it  was  so  bad.  She  was  very  violent  in  con- 
duct— half  crazy.  She  said  she  paid  $100  a  month  to  a 
detective  to  watch  Scott  and  that  she  was  willing  to  pay  a 
girl  to  trap  him  into  intercourse.  She  was  very  jealous  of 
Scott,  broke  all  the  furniture  in  his  room  at  one  time; 
she  would  go  around  naked  and  dance  about  the  room 
before  the  mirror  because  she  was  so  well  built.  Ida  was  of 
opinion  that  Mrs.  Scott  was  insane;  her  constant  talk  was 
that  her  husband  was  unfaithful. 

Anselm  C.  Hammond  was  employed  by  Mrs.  Scott,  then 
Mrs.  Collins,  to  copy  the  will  of  her  first  husband  and  to 
find  out  what  became  of  the  proceeds;  this  was  in  July,  1891. 
He  did  so.  He  frequently  conversed  with  her  from  that 
time  until  1897,  the  burden  of  her  talk  was  that  her  second 
husband  was  unfaithful  to  her.  She  spoke  of  his  having 
intercourse  with  her  nieces  and  others.  She  told  him  that 
Scott  and  Ball,  one  of  the  attorneys  in  this  contest,  were 
trying  to  railroad  her  into  the  insane  asylum.  Her  lan- 
guage in  reference  to  her  husband  and  his  habits  with  women 
was  such  as  Hammond  had  never  been  accustomed  to  in  a 
woman.      It    was    vulgar    and    obscene    to    a    degree.      She 


Estate  of  Scott.  311 

charged  Scott  even  in  1891  with  running  with  women. 
Hammond  formed  the  opinion  in  1891  that  she  was  not 
mentally  sane  after  he  had  made  returns  to  her  about  the 
Spring  Valley  Water  stock  which  were  unsatisfactory,  and 
because  of  her  dissatisfaction  at  his  work,  Hammond  be- 
came annoyed;  she  spoke  about  poison  and  Scott's  infidelity 
to  her;  she  was  continually  talking  about  being  railroaded 
to  the  asylum  by  Scott  and  Ball.  Hammond  had  never  seen 
anything  wrong  in  the  conduct  of  Scott.  His  office  was  and 
is  at  Room  39,  Merchants'  Exchange,  and  Mr.  Scott  has  a 
desk  in  the  same  office.  Hammond  is  an  expert  accountant 
and  was  employed  by  the  decedent  in  1891.  He  made  a 
report  to  her  before  August,  1891,  the  report  was  unsatis- 
factory to  her  and  that  annoyed  witness  greatly. 

]\Irs.  Ella  Joseph  went  to  live  at  the  house  of  Mrs. 
Scott  at  the  time  the  husband  of  the  decedent  was  in  the 
east;  she  was  very  vile  and  violent  in  her  language — in  fact 
the  conduct  and  conversation  of  the  decedent  were  so  coarse 
and  vulgar  that  witness  told  her  that  she  would  lose  her 
grace  if  she  remained  there.  The  witness  was  a  church 
member — Third  Baptist  Church.  She  never  stopped  in  the 
house  of  Mrs.  Scott  at  nights,  but  was  there  about  a  year 
and  a  half.  Mr.  Scott  had  gone  east  but  a  short  time  when 
this  witness  went  to  live  there,  and  after  he  returned  she 
remained  there  about  eight  or  nine  months.  "When  witness 
went  there  after  a  little  while  she  asked  Mrs.  Scott  if  she 
had  a  husband.  She  answered,  "Yes,  of  course  I  have." 
Witness  then  said,  "You  will  excuse  me  if  I  intrude,  but 
where  is  your  husband?"  Mrs.  Scott  said  that  he  was  in 
the  east  with  a  woman.  She  was  always  talking  of  his 
running  with  a  woman  or  women;  accused  him  to  the  wit- 
ness of  improper  conduct  with  the  servants  in  the  house  and 
with  other  women.  So  far  as  witness  saw,  Mr.  Scott  was  a 
very  nice  gentleman  in  his  behavior. 

Joseph  Mortier  is  an  orchardist  and  wine-maker;  was  so 
engaged  at  Mountain  View  at  the  Scott  ranch  from  July, 
1889,  to  September,  1892.  Mrs.  Scott  used  to  come  on  an 
average  about  once  in  two  montlis;  she  used  to  talk  to  Mor- 
tier about  Mr.  Scott,  and  asked  him  if  Scott  did  not  visit  a 
certain  widow  and  some  young  ladies  in  the  neighborhood, 


312  Coffey's  Probate  Decisions,  Vol.  1. 

very  respectable  persons,  and  witness  told  her  not  so  far  as 
he  had  observed.  The  witness  considered  the  decedent  in- 
sane, because  she  could  never  carry  on  a  talk  for  ten  min- 
utes at  a  time,  and  she  would  jump  from  one  subject  to 
another.  Witness  thought  she  was  off  on  the  point  of  jeal- 
ousy of  her  husband. 

Kevilo  F.  Morton  went  into  the  service  of  Mrs.  Scott  in 
January,  1893,  as  bookkeeper.  She  used  to  talk  to  him  for 
hours;  she  began  to  talk  about  her  husband  as  early  as 
March,  1893,  and  continued  that  way  until  her  death.  The 
first  conversation  was  when  she  sent  for  the  witness  and 
talked  to  him  for  three  hours.  Among  other  things,  she 
said  that  Scott  wasted  and  squandered  $100,000  of  her 
money  in  the  first  year  of  her  marriage.  The  decedent  also 
said  that  her  husband  was  not  faithful  to  her  and  was  famil- 
iar with  the  servant  girls.  She  said  that  he  had  sold  the 
Spring  Valley  Water  stock.  Mrs.  Scott  also  said  that  she 
had  been  defrauded  in  her  first  husband's  estate,  which 
ought  to  have  been  worth  at  least  $500,000,  but  only  came 
out  about  $275,000,  and  that  through  Mr.  Estee  and  his 
partner,  Mr.  Wilson,  she  had  been  robbed  of  th-e  remainder. 
She  said  that  her  first  husband  had  said  he  was  going  to 
buy  the  Stevenson  building,  and  she  thought  he  must  have 
had  another  box  in  the  safe  deposit  vault  wherein  were  con- 
tained other  securities  that  were  not  in  the  inventory  of  his 
estate.  She  had  no  confidence  in  anyone.  She  said  that 
Scott  was  trying  to  poison  her  and  that  she  had  been  poi- 
soned before  the  witness  knew  her.  She  told  Mr.  Morton 
once  that  she  had  a  circus  with  Scott  at  the  breakfast  table 
and  she  smashed  all  the  crockery,  and  she  said  that  when 
she  had  one  of  those  spells  she  must  smash  something.  She 
told  the  witness  that  she  was  making  a  codicil  and  she  was 
going  to  give  Scott  very  little  and  cut  Mrs.  Meily  off  with  a 
dollar  because  they  had  been  intimate.  In  her  figuring  on 
the  prices  of  her  wines  she  was  frequently  at  fault;  she 
would  ask  such  prices  above  the  market  rate  that  she  could 
not  secure  a  purchaser.  In  his  opinion  she  was  during  this 
period  insane,  his  reasons  being  then  and  now  that  she  en- 
tertained those  suspicions  of  certain  acts  and  persons  which 
had  no  grounds  for  her  beliefs.     In  all  the  time  that  Mr, 


Estate  of  Scott.  313 

Morton  knew  her  he  found  no  ground  for  her  belief  or  ac- 
cusations of  fraud  and  poisoning  and  of  the  infidelity  of 
Mr.  Scott ;  quite  the  contrary  was  the  result  of  his  researches 
and  observations.  She  used  in  her  talk  so  much  profanity 
and  vulgarity  that  the  witness  could  not  believe  that  any 
woman  who  talked  that  way  habitually  could  be  sane.  If 
she  were  asked  a  price  for  the  wine  she  would  take  the 
market  rates  and  then  she  would  add  several  cents  and  in- 
sist upon  this  higher  rate,  which  could  not  be  obtained. 
She  would  insist  upon  such  quotations  in  advance  of  the 
local  market  prices.  She  made  a  price  higher  than  others 
in  the  business.  He  did  not  think  she  used  good  business 
judgment  in  such  a  case.  Her  custom  at  the  banks  was  to 
borrow  money  on  her  own  note  without  security  to  carry 
on  the  ranch.  She  borrowed  money  from  the  Bank  of  Cali- 
fornia and  the  First  National  Bank.  She  borrowed  $25,000 
at  one  time  and  at  the  time  of  her  death  she  owed  the 
latter  $35,000.  Mr.  Morton  kept  the  books  from  data  fur- 
nished by  her. 

Mrs.  Anna  Elizabeth  Ogilvie  was  a  seamstress  for  the  late 
Mrs.  Scott,  who  was  all  the  time  complaining  of  her  hus- 
band, Mr.  Scott,  and  telling  how  he  had  connection  with  all 
the  girls  who  were  there,  the  servants  in  the  house  and  then 
went  down  town  after  other  women.  She  said  he  had  inter- 
course with  the  colored  girl  in  the  front  room,  of  which  she 
had  auricular  evidence  as  she  had  heard  the  bed  shake.  She 
also  said  he  had  improper  relations  with  her  own  niece,  Mrs, 
Meily,  as  she  had  stood  at  the  latter 's  door  and  had  heard 
the  sounds  which  satisfied  her  of  the  fact.  .She  would  fol- 
low Scott  all  around  the  house  calling  him  vile  names.  This 
would  happen  nearly  every  day.  Mrs.  Scott  told  the  wit- 
ness that  she  had  a  bad  temper,  which  she  inherited. 

Mrs.  Catherine  O'Connor  worked  for  Mrs.  Scott  from 
1889,  two  weeks  after  her  marriage  to  Mr.  Scott,  off  and 
on  until  last  October,  1897.  She  would  go  to  work  in  the 
morning  at  8  o'clock  and  leave  at  5  o'clock  in  the  afternoon; 
never  slept  in  the  house,  as  she  had  her  own  house  and  home 
for  many  years.  Mrs.  Scott  talked  to  this  witness  a  great  deal 
and  the  strain  was  always  the  same — the  alleged  infidelity 
of  her  husband,  whom  she  continually  accused  of  dalliance 


314  Coffey's  Probate  Decisions,  Vol.  1. 

with  other  women.  She  was  jealous  of  a  colored  girl  in 
the  house  and  used  to  stand  nude  looking  over  the  banisters, 
and  witness  asked  her  why  she  stood  there  in  danger  of  cold, 
and  she  said  she  was  watching  Scott  and  the  colored  girl 
downstairs.  She  used  very  vile  language;  witness  never 
heard  anything  so  low.  She  told  the  witness  that  the  reason 
why  she  had  hired  the  colored  girl  was  because  Scott  was 
after  all  the  white  girls  and  she  was  going  to  give  him 
enough  of  it  now.  Mrs.  O'Connor  never  heard  her  say  any- 
thing about  Scott  except  that  he  was  untrue  to  her  and  all  she 
feared  was  that  he  would  put  her  into  an  insane  asylum: 
in  the  opinion  of  the  witness  Mrs.  Scott  was  crazy — strictly 
crazy. 

Mrs.  Eliza  J.  Paisley  deposed  that  she  lived  in  California 
once  upon  a  time  from  April  to  August,  1890,  on  Franklin 
street  with  Mrs.  Scott.  Mrs.  Paisley  is  the  sister  of  the  first 
husband  of  decedent,  Salvin  Perry  Collins.  Witness  went 
there  by  her  invitation.  She  had  a  great  many  conversations 
with  Mrs.  Scott,  who  talked  a  good  deal  about  Mr.  Scott, 
finding  fault  with  him  about  being  untrue  to  her  in  a  great 
many  instances.  She  accused  him  of  numerous  illicit  actions. 
Witness  could  not  tell  as  to  their  truth.  Mrs.  Paisley  lived 
there  three  months  and  saw  the  decedent  and  Mr.  Scott  every 
day  and  was  always  treated  "extra  well"  by  him,  he  never 
making  any  improper  advances  to  her.  She  never  saw  any- 
thing improper  in  his  attitude  toward  anybody.  His  conduct 
was  everything  that  was  right  toward  everybody  and  he  al- 
ways behaved  himself.  While  she  was  there  Mrs.  Scott  did 
not  conduct  herself  in  relation  to  her  person  as  she  thought 
becoming  to  a  woman.  She  had  seen  her  do  a  great  many 
things  that  were  improper ;  as  exhibiting  herself  in  a  naked 
manner,  dancing  about  in  the  room  before  a  glass — when  she 
did  that  she  was  naked.  The  deponent  had  heard  her  make 
threats  against  Mr.  Scott  and  his  children.  She  saw  her  use 
a  pistol  not  exactly  to  him,  but  she  would  say  she  could  shoot 
and  would  shoot  Scott  sometime.  She  did  not  threaten  to 
kill  him,  but  she  threatened  the  children.  Sometimes  when 
she  would  be  carrying  on  she  would  say,  to  spite  Mr.  Scott 
she  would  do  something  to  the  children.     At  one  time  she  said 


Estate  of  Scott.  315 

she  could  poison  those  children,  by  putting  something  on  their 
lips.  When  the  deponent  left  to  go  home  they  came  to  see 
her  off.  In  the  last  conversation  she  had  with  Mrs.  Scott 
at  the  ferry,  the  latter  said  that  she  would  draw  blood,  or 
felt  like  doing  so,  before  she  got  home.  Mrs.  Scott  was  highly, 
wrought  up  at  that  time. 

Edward  G.  Perkins  first  met  Mrs.  Scott  at  Pescadero  in 
1872 ;  she  was  then  Mrs.  Collins.  He  did  not  have  any  fur- 
ther acquaintance  with  her  until  1891,  when  he  went  to  see 
her  about  purchasing  a  horse  that  he  heard  she  had  for  sale ; 
nothing  came  of  that.  It  was  with  Mrs.  Scott  that  the  wit- 
ness had  the  conversation  about  the  horse  and  its  pedigree — 
Mr.  Scott  not  knowing  anything  about  the  pedigree  of  the 
horse  although  he  knew  of  the  negotiations;  he  took  no  part 
in  that.  Mr.  Perkins  was  about  three  months  pottering  over 
the  matter  of  the  negotiations  for  the  sale  of  the  ranch.  His 
compensation  was  to  be  dependent  upon  the  success  of  the 
sale,  and  that  never  came  to  pass.  He  was  then  engaged  in 
buying  and  selling  mining  stocks  on  his  own  account  through 
a  broker.  Mr.  Scott  knew  of  the  negotiations  about  the  sale 
of  the  ranch,  and  he  said  to  him  once  that  he  did  not  think 
it  worth  the  while  of  the  witness  to  be  carrying  on  the  affair 
as  the  decedent  would  change  her  mind  so  often,  and  after 
a  while  it  so  turned  out;  the  matter  dropped  off  and  after 
about  three  months  of  vain  negotiations  the  end  came.  When 
Mr.  Perkins  first  met  her  in  1891  he  thought  she  was  one  of 
the  most  villainous  women  in  her  tongue  he  had  ever  encoun- 
tered, but  after  a  while  he  came  to  the  conclusion  that  she 
was  insane;  her  vile  language  and  violent  actions  convinced 
him  that  she  was  insane.  Sometimes  she  would  put  her  hands 
to  the  side  of  her  head  and  pace  up  and  down  the  room  and 
talk  to  herself  incoherently  and  then  break  out  into  a  torrent 
of  indescribable  vulgarity. 

Mrs.  Annie  J.  Robinson  knew  decedent  from  October,  1889, 
to  January,  1890;  witness  was  acting  as  maid  for  her;  at 
the  time  she  was  there  Mr.  Scott  was  in  New  York  and 
returned  two  weeks  before  witness  left.  Mrs.  Scott  was 
in  the  habit  of  saying  that  Scott  had  a  woman  with  liini. 
She  was  very  vulgar  and  profane  in  her  expressions.     She 


316  Coffey's  Pkobate  Decisions,  Vol.  1, 

« 

removed  her  clothing  and  exposed  her  person,  saying  she 
was  a  perfect  Venus.  She  took  massage  at  times,  but  it 
was  not  for  that  purpose  that  decedent  undressed  before 
witness;  it  was  for  no  other  reason,  so  far  as  witness  could 
^observe,  but  that  Mrs.  Scott  should  ask  her  opinion  about 
her  form  as  to  being  a  perfect  Venus.  Witness  did  not 
think  decedent  was  a  Venus  nor  did  she  consider  hers  a 
pretty  form,  but  did  not  say  anything.  After  witness  left 
Mrs.  Scott's  house  she  went  to  work  elsewhere.  She  had  no 
quarrel  with  Mrs.  Scott,  but  could  no  longer  put  up  with  her — 
existence  ceased  to  be  endurable  with  her. 

Miss  Elizabeth  Jane  Richards,  dressmaker,  went  to  work 
sewing  for  Mrs.  Scott  about  a  year  after  her  marriage  to 
Mr.  Scott,  say  from  1890,  and  the  decedent  frequently  rode 
out  to  the  home  of  witness  on  Point  Lobos  avenue  and  spent 
the  whole  day  there.  When  witness  first  went  to  the  house 
of  deceased  Mr.  Scott  was  absent  in  the  east.  Witness  was 
there  then  for  a  week.  She  met  him  first  on  the  second  or 
third  occasion  of  her  working  there.  He  came  into  the  room 
and  Mrs.  Scott  introduced  witness  to  him;  prior  to  that  time 
witness  had  never  met  him.  Witness  used  to  stay  at  the 
house  of  decedent  as  much  as  two  weeks  at  a  time,  sewing 
all  day,  and  decedent  would  spend  the  time  with  her.  Wit- 
ness never  spent  a  night  there  but  took  her  luncheon  and 
dinner  at  that  house.  On  the  very  first  night  or  the  first 
day  that  she  spent  there  decedent  presented  herself  in  the 
room  before  the  witness  stark  naked  and  asked  witness  if 
she  did  not  think  she  had  a  fine  figure  and  form  and  was  a 
well-built  woman,  and  if  there  was  any  occasion  for  Mr. 
Scott  to  go  after  other  women.  The  witness  said  she  did 
not  know,  as  she  made  no  studies  of  ladies  below  the  waist 
line,  and  told  her  that  she  wished  she  would  not  act  in  that 
way  before  her.  The  decedent  was  always  talking  about 
Mr.  Scott,  and  his  consorting  with  women,  the  servants  in 
the  house  and  others  whom  she  suspected.  She  made  threats 
of  killing  him  often,  and  said  she  would  shoot  him  to  death 
if  she  caught  him  with  a  woman;  said  she  would  give  $1,000 
to  any  girl  who  would  seduce  him  and  sleep  with  him. 
She  said  that  Judge  E.  D.  Sawyer  and  Mr.  Ball  were  con- 


Estate  of  Scott.  317 

spiring  to  railroad  her  to  an  insane  asylum  but  that  she 
would  see  them  in  hell  first.  She  was  very  coarse  and  violent 
in  her  speech — most  profane  and  vulgar.  She  would  dance 
before  the  mirror,  wring  her  hands  and  carry  on  at  a  great 
rate;  she  would  also  indulge  in  high  kicking;  she  would 
square  off  before  her  mirror  and  spar  and  swear  at  herself. 
Witness  did  not  remember  the  names  of  the  girls  who  were 
there  at  that  time — decedent  had  so  many  girls;  she  would 
have  three  in  a  day.  Witness  could  not  keep  track  of  the 
girls;  decedent  had  about  one  for  every  day  in  the  month. 
She  would  discharge  them;  they  would  not  stay  with  her 
because  her  wrangling  and  her  actions  were  so  bad  that  they 
could  not  stand  her  and  the  food  was  insufficient.  Decedent 
had  to  get  three  different  girls  in  a  day  in  order  to  get  her 
work  done.  She  would  have  to  do  it  herself  and  go  on  her 
hands  and  knees,  yet  notwithstanding  that  fact  witness 
remained  with  decedent  eight  years. 

E.  D.  Sawyer,  who  is  an  attorney  and  counselor  at  law 
and  has  been  practicing  for  forty-odd  years  in  this  city  and 
state  and  was  formerly  for  a  term  of  six  years  judge  of  the 
old  fourth  judicial  district,  prior  some  years  to  the  adoption 
of  our  present  state  constitution,  and  is  now  representing  in 
this  estate  and  contest  absent  and  minor  heirs  by  appoint- 
ment of  the  court,  cannot  say  that  he  had  any  acquaintance 
with  the  late  Mrs.  Scott.  Mr.  Ball  was  at  one  time  his  part- 
ner, but  witness  had  nothing  to  do  with  Mrs.  Scott  and  had 
no  hand,  act  or  part  in  any  plot  against  her. 

Lloyd  Nudd  Scott  is  now  twenty-one  years  of  age,  a  student 
in  the  University.  He  first  saw  Mrs.  Scott  about  a  month 
before  her  marriage  to  his  father,  who  took  his  brother  and 
himself  to  see  her.  This  was  in  October,  1889,  when  witness 
was  fourteen  years  old.  Witness  and  his  brother  accom- 
panied their  father  to  the  train  when  he  went  east.  She  said 
that  he  had  a  woman  in  the  car  with  him;  she  talked  about 
his  father  all  the  time  in  1889  and  1890,  as  to  his  running 
with  other  women;  she  took  the  lock  off  his  door  so  that  she 
could  go  in  and  see  if  he  had  any  servant  girl  with  him ;  she 
told  Lloyd  that  she  put  a  thread  on  the  stairs  to  see 
whether  the  girls  went  up  or  down  at  night;  she  said  that 


318  Coffey's  Probate  Decisions,  Vol.  1. 

he  and  Ball  were  trying  to  railroad  her  to  an  insane  asylum ; 
she  used  to  say  that  the  servants  in  the  house  were  lewd 
women  who  came  there  to  rest  up  and  that  father  was  intimate 
with  them.  These  tantrums  or  spells  would  last  for  a  long 
time  and  then  she  would  quiet  down  for  a  w^hile  and  express 
her  regret  for  her  conduct,  saying  that  she  did  not  know 
what  she  was  doing  while  she  was  in  such  a  condition.  She 
would  throw  herself  into  a  terrible  tantrum  and  become  so 
violent  and  irritable  that  everyone  was  obliged  to  let  her 
have  her  own  way  for  fear  of  the  consequences,  and  after  one 
of  those  tantrums  his  father,  his  brother,  and  himself  were 
obliged  to  leave  the  house  and  go  to  the  Hotel  Langham.  and 
after  that  to  the  Geysers,  whence  they  returned  to  the  house 
on  Franklin  street,  upon  the  receipt  of  a  message  from  her. 
After  a  short  respite  she  would  renew  her  conduct.  Father 
used  to  ask  her  to  come  with  him  to  the  theater,  but  she 
would  decline  on  the  ground  that  she  had  to  arise  early. 
She  spent  her  evenings  at  home  and  so  did  father.  She  was 
not  given  to  reading  but  a  great  talker  on  one  topic.  Father 
would  not  remain  to  listen  to  this  but  would  get  up  and  go 
out.     Wesley  testified  to  the  same  effect  as  his  brother. 

Thomas  M.  Talman  lives  at  1743  Franklin  street,  the  house 
of  the  late  Mrs.  Scott,  and  is  attending  to  the  garden  there. 
He  was  first  engaged  by  Mrs.  Scott  in  1892  and  continued  in 
his  employment  until  1894.  His  occupation  consisted  in 
attending  to  things  generally.  Mrs.  Scott  began  to  talk  about 
her  husband  to  him  from  the  first.  At  the  ranch  she  talked 
to  him  for  hours  on  the  same  subject.  On  one  occasion  while 
he  was  attending  on  Mr.  Scott,  who  was  ill  and  under  the 
weather,  he  occupied  one  room  and  she  another  room;  the 
witness  was  up  nights  looking  after  him ;  the  decedent  came 
into  the  room  clad  only  in  a  chemisette  and  went  to  the  fire- 
place and  raised  her  garments  in  the  rear  with  her  back  to 
the  fire,  the  witness  being  in  front  of  her.  According  to 
Talman  she  was  always  flighty  in  her  talk,  jumping  from  one 
subject  to  another,  no  connection  in  her  talk.  The  witness 
took  charge  of  the  chickens  and  some  of  the  horses.  They 
had  three  or  four  hundred  chickens.     The  pay  of  the  wit- 


Estate  of  Scott.  ■  319 

ness  was  ten  dollars  a  month.     He  has  been  now  (March  31, 
1898)  about  three  or  four  weeks  at  Mr.  Scott's. 

John  F.  Uhlhorn  was  introduced  to  Mrs.  Scott  at  her  house 
by  Mr.  Scott  in  the  year  1891,  and  after  the  introduction 
Scott  went  out  and  Mrs.  Scott  at  once  engaged  in  conversa- 
tion with  the  witness  and  began  by  asking  him  if  he  knew 
that  Scott  and  Ball  were  trying  to  railroad  her  to  an  insane 
asylum.     Witness  answered  that  he  did  not.     Mrs.  Scott  said 
that  it  was  so,   and  she  went  on  with   a  tirade,   swearing 
vociferously,  saying  that  Scott  was  running  after  women  and 
cohabiting  with  all  the  women  that  he  met  and  with  the 
servant  girls  in  the  house.     Uhlhorn  formed  the  opinion  she 
was  insane  on  account  of  her  conduct  and  conversation  at 
that  interview.     About  a  month  afterward  he  had  a  similar 
conversation ;  her  talk  was  the  same,  and  that  corroborated 
his  opinion  previously  formed.     In  the  year  she  called  upon 
him  at  the  Cafe  Zinkand  on  Market  street  and  spent  an  hour 
at  a  time  talking  with  him  on  the  same  topic.     She  asked 
him  if  he  did  not  know  that  Scott  and  Ball  kept  a  harem 
at  the  Hotel  Grosvenor  on  Sutter  street,  but  the  witness  did 
not  know  anything  of  the  kind.     "Witness  had  known  Mr. 
Scott  for  about  twelve  years.     When  he  first  met  Mrs.  Scott 
her  husband  took  him  up  to  see-  her,  saying  that  he  wanted 
to  make  him  acquainted  with  her.     After  a  few  moments, 
Scott  excused  himself  and  left  witness  and  Mrs.  Scott  alone 
in  the  conservatory.     On  the  second  occasion  she  met  Uhlhorn 
on  the  street  one  day  and  invited  him  to  dinner,  and  he  went 
the  next  day.     Scott  was  not  present  on  that  occasion.     She 
said  that  she  expected  Scott  to  dinner  but  he  did  not  come. 
On  an  occasion  about  three  months  subsequent  Scott  invited 
Uhlhorn  to  dinner  at  his  house  and  he  went  and  they  had 
dinner.     Everything  was  agreeable  at  the  table.     Afterward 
they  went  into  the  parlor.     Mr.  Scott  went  upstairs  and  she 
and   Uhlhorn   conversed   for   about   ten    iiiiiintes.     She   was 
harping  on  the  su}).ject  of  her  husband's  assumed  escapades 
and  his  running  after  women  with  Ball.     After  IMr.   Scott 
came  into  the  parlor  he  remained  a  few  minutes  and  they 
then  left  the  house.     After  the  conversation  the  first  time 
witness  spoke  to  Scott  saying  it  was  strange  his  wife  should 


320  Coffey's  Probate  Decisions,  Vol.  1. 

mention  such  matters  to  him  the  first  time  they  met.  Witness 
chaffed  him  a  little  about  his  running  with  women  and  he 
said  that  was  all  nonsense.  Witness  did  not  repeat  to  him 
what  she  said  about  the  insane  asylum,  as  he  considered  it 
was  too  delicate.  In  1893  she  invited  him  to  go  down  to  the 
ranch  with  Scott,  as  she  thought  it  would  do  them  both  good 
to  have  a  little  outing.  He  accepted  the  invitation,  and  went 
down  with  him.  Decedent  wanted  him  to  write  for  her  a 
detailed  description  of  the  ranch  in  a  letter  and  he  did  so. 
She  paid  a  visit  to  the  ranch  while  he  and  Scott  were  staying 
there,  saying  she  wanted  to  see  what  the  men  were  doing — 
having  a  good  time,  running  around  with  women.  This  was 
the  general  trend  of  her  talk,  and  she  did  not  seem  to  have 
any  respect  for  herself  or  anyone  else  in  her  manner  of  talk. 
Mr.  Uhlhorn  wrote  a  detailed  description  of  the  ranch  for 
her  in  or  about  October,  1897,  and  gave  it  to  her,  and  she 
seemed  satisfied  with  it. 

William  Warwick  worked  for  a  while  for  Mrs.  Scott  in  the 
year  1897.  He  went  to  seek  employment  in  response  to  an 
advertisement  for  men  at  a  vineyard.  He  first  met  her  about 
September  15th,  1897.  He  heard  that  she  had  a  vineyard  at 
Mountain  View  and  he  went  there  to  see  if  he  could  obtain  a 
job.  She  told  him  that  she  did  not  have  work  in  the  vine- 
yard but  that  she  could  give  him  work  watching  Mr.  Scott. 
Warwick  accepted  the  situation  and  entered  upon  the  duty. 
He  went  on  his  trail  and  followed  him  about  from  that  day, 
September  15th,  until  about  the  6th  or  7th  of  October,  1897, 
without  detecting  in  him  any  impropriety  or  discovering 
him  visiting  any  place  of  doubtful  repute.  The  witness  fol- 
lowed him  all  around  San  Francisco  every  day  that  Mr.  Scott 
was  in  town,  kept  constantly  in  his  wake  all  the  time.  Left 
the  house  every  morning  that  he  did  and  took  the  same  car 
and  returned  in  the  evening  when  he  did;  wherever  Scott 
went  Warwick  pursued.  He  did  this  at  her  request.  She 
told  him  she  wanted  to  catch  Scott  going  with  Mrs.  Meily 
particularly.  She  instructed  him  to  keep  his  eye  on  Scott  and 
watch  whithersoever  he  went  and  report  results  to  her.  She 
wanted  to  catch  him  with  a  woman  so  that  she  could  take 
down  the  bed  and  move  his  trunk  for  him.     She  said  that 


Estate  of  Scott.  321 

Scott  was  of  illegitimate  extraction,  using  a  vulgar  epithet 
to  describe  his  immediate  female  ancestor.  She  kept  the  wit- 
ness running  around  after  him,  but  as  he  found  nothing 
unbecoming  a  gentleman  in  Mr.  Scott's  conduct  he  quit  the 
pursuit  and  relinquished  the  employment. 

John  A.  O'Dea  is  a  plumber  and  a  resident  of  San  Fran- 
cisco for  nearly  forty  years.  He  knew  Mrs.  Scott  from 
January  12,  1892,  when  he  went  to  do  some  work  for  her  and 
continued  the  acquaintance  for  the  balance  of  her  life.  Had 
many  conversations  with  her  on  topics  other  than  business. 
She  would  insist  on  talking  of  her  domestic  affairs  when  the 
witness  wanted  to  talk  business  and  he  strove  by  evasive 
answers  to  avoid  such  talk,  but  she  persisted  until  he  managed 
to  excuse  himself  and  left  her.  Her  language  was  usually 
very  profane  and  vulgar.  She  was  very  violent  in  her  speech 
and  manner  at  all  times.  His  first  experience  was  when  he 
went  there  in  response  to  a  message  through  her  coachman, 
and  when  he  reached  the  house  he  was  met  with  a  volley  of 
violent  vulgarity,  much  to  his  amazement.  With  a  torrent 
of  torrid  expletives  she  assailed  his  ears  in  so  fierce  a  manner 
as  to  cause  him  to  make  a  hasty  retreat  because  of  the 
linguistic  bombardment,  which  was  a  novel  experience  to 
him — so  much  so  that  he  declined  to  stay  or  return,  but  was 
induced  to  do  so  by  the  coachman,  who  assured  him  that  that 
was  only  her  customary  way  of  expressing  her  emotions,  that 
she  spoke  thus  strongly  on  all  occasions.  The  witness  so 
found  in  his  subsequent  dealings  with  her.  She  would  curse 
and  swear  and  indulge  in  vulgar  remarks  to  an  extent  and 
with  a  variety  previously  unknown  to  him.  She  always  paid 
her  plumbing  bills.  The  last  job  he  did  for  her  was  in  1896. 
She  was  not  extraordinarily  acute  in  her  dealings. 

Mrs.  Gerrish  heard  Mrs.  Scott  say  she  could  not  keep  her 
servants  on  account  of  the  familiarity  of  Scott  with  them, 
and  that  her  husband  was  running  with  other  women,  Mrs. 
Meily  being  one  of  them. 

To  Edward  Lewis  Brown  decedent  expressed  herself  that 
Scott  was  unfaithful  to  her  and  that  he  was  no  husband  to 
her. 

Prob.  Dec,  Vol.  1—21 


322  Coffey's  Probate  Decisions,  Vol.  1. 

Mrs.  Scott  complained  to  Nellie  Swall  that  Scott  was 
running  with  other  women  and  that  he  was  trying  to  put 
her  into  an  insane  asylum. 

To  Charles  E.  Elliot  decedent  said  that  she  could  not  keep 
a  woman  in  the  house  without  Scott's  trying  to  get  in  bed 
with  her.  This  was  when  Elliot  advised  her  to  have  a  com- 
panion. 

Decedent  told  Amanda  Johnson  that  Ball  and  Scott  were 
going  up  to  the  Napa  Insane  Asylum  to  pick  out  a  room  for 
her. 

To  Sumner  C.  Murray  she  said  that  her  husband  was  run- 
ning around  with  "chippies,"  and  to  Wealthy  Wormell  she 
said  that  Mr.  Scott  was  running  around  with  other  women. 

When  Mrs.  Putman  went  to  Mrs.  Scott's  the  latter  told  her 
on  the  first  day  that  Scott  had  improper  relations  with  servant 
girls.  She  also  mentioned  a  relative  of  Mr.  Collins  and  said 
that  Mrs.  Paisley  and  Mr.  Scott  were  conniving  to  do  away 
with  her.  Mrs.  Putman  did  not  know  exactly  how,  but  the 
tale  of  Mrs.  Scott  was  to  the  effect  that  she  thought  they 
w^ere  in  common  against  her.  Mrs.  Putman  had  some  griev- 
ance against  Mrs.  Meily  on  account  of  some  stories  that  were 
repeated  as  coming  from  her,  and  thought  she  would  be  justi- 
fied in  retaliating  by  retailing  some  account  of  Mr.  Scott's 
visit  to  Mrs.  Meily,  and  she  went  and  saw  Mrs.  Scott  and 
began  telling  her  about  Mr.  Scott  visiting  Mrs.  Meily.  Mrs. 
Scott  said  she  knew  that  already  and  told  the  witness  that 
she  had  made  a  visit  there  and  was  confident  that  Mr.  Scott 
was  with  ]Mrs.  Meily  on  that  occasion.  She  told  the  witness 
that  Mr.  Scott  had  at  one  time  tried  to  put  her  in  an  insane 
asylum. 

Adolph  Herman  Grossman  says  that  Mrs.  Scott  did  some- 
times complain  of  Mr.  Scott  going  with  women,  but  she  did 
not  speak  of  any  particular  woman. 

Mrs.  Mary  J.  Larmer  says  that  Mrs.  Scott  was  very  vulgar 
and  profane  in  her  conversation,  cursed  and  swore,  and  was 
violent. 

Charles  August  Armstrong  heard  her  swear  on  occasions. 
He  was  a  cooper  and  did  cooperage  for  her.  Mrs.  Scott  did 
her  business  on   strictly  business   principles,   and   whatever 


Estate  of  Scott.  323 

engagements  she  made  she  kept  to  the  letter.  She  said  she 
had  to  attend  to  all  the  business  herself  as  she  had  no  one 
to  do  it  for  her,  as  her  husband  did  not  seem  disposed  or 
able  to  assist  her.  If  Armstrong  and  Mrs.  Scott  had  a  dis- 
agreement about  the  price  of  her  work  she  would  swear  at  times 
at  his  propositions,  but  he  would  not  mind  it,  because  it  was 
her  way,  and  he  thought  it  was  a  sane  act  for  her  to  swear 
at  him. 

From  these  particulars  of  evidence  counsel  for  contestant 
deduces  proof  of  delusions  sufficient  to  overthrow  the  will  as 
an  offspring  of  a  mind  diseased.  Mr.  Estee  claims  that  there 
is  here  a  perfect  concatenation  of  circumstances,  conduct,  and 
conversation.  No  one  link  may  suffice,  but  the  chain  is  per- 
fectly joined  in  all  its  parts.  He  claims  to  have  shown  that 
there  was  no  foundation,  howsoever  slight,  for  her  suspicion 
in  any  of  the  particulars  specified,  not  a  jot  or  tittle,  not  an 
iota  of  evidence  to  sustain  the  suspicion  of  the  infidelity  of 
Scott  or  the  unchastity  of  the  venerable  sister  in  law  or  the 
niece  of  the  decedent.  The  idea  of  either  of  these  ladies  being 
intimate  with  Scott  was  too  absurd  to  be  entertained  by  a 
normal  mind.  She  knew  that  she  had  no  proof  of  such  a  fact 
and  with  the  cunning  of  insanity  endeavored  to  fabricate 
proofs  of  his  infidelity  by  trying  to  induce  others  for  money 
to  subscribe  to  statements  incriminating  him,  but  she  did 
not  succeed,  because  there  was  no  proof  possible  and  those 
whom  she  tempted  were  unpurchasable  for  such  a  purpose. 

All  this  is  stated  in  the  strongest  manner  for  contestant: 
but  were  her  suspicions  of  Scott  founded  on  a  fixed  belief? 
Was  there  nothing  to  induce  belief  in  her  mind,  no  scintilla 
on  which  to  base  suspicion — a  very  meager  item,  even — which 
would  warrant  her  in  concluding  that  he  was  unfaithful? 
There  was  something  in  the  incident  in  the  hugging  of  a 
servant  girl  at  the  fireplace  or  grate  in  the  parlor  which 
was  related  in  the  testimony  of  Carl  Anderson,  when  upon 
her  approach  the  girl  repulsed  Scott  and  he  escaped  through 
the  window  into  the  conservatory  and  the  girl  explained  that 
he  was  only  pushing  her;  this  little  incident  is  significant 
and  might  easily  induce  a  jealous  woman  to  suspect  the  con- 
stancy of  her  husband  and  to  believe  that  he  was  in  the  habit 


324  Coffey's  Probate  Decisions,  Vol.  1. 

of  being  unduly  familiar  with  the  female  domestics  in  her 
household.  Her  suspicions  may  have  been  unjust  and  her 
inferences  too  general,  but  that  was  merely  an  error  of  logic 
and  not  an  evidence  of  insanity  or  of  insane  delusion.  She 
had  a  right  to  infer  however  erroneously  or  from  inadequate 
premises  to  a  universal  conclusion,  for  false  logic  or  fault}^ 
ratiocination  is  far  from  the  manifestation  of  insanity,  so  long 
as  the  process  is  formally  correct,  not  incoherent  nor  incon- 
sequential. Her  suspicions  or  apprehensions  that  he  and 
others  were  contemplating  sending  her  to  an  insane  asylum 
or  poisoning  her  may  have  been  unfounded  in  fact  and  yet 
have  some  germ  sufficient  to  develop  and  fructify  in  her  mind 
a  rational  fear  that  her  life  or  liberty  was  or  would  be  in 
peril  from  that  source. 

Mrs.  Scott  may  have  reasoned  in  her  mind,  however  faultily, 
that  some  one  meditated  terminating  her  existence  in  some 
furtive  manner.  It  is  not  hard  to  conjecture  how  she  may 
have  sat  down  and  wrought  out  a  theory  of  poisoning ;  her  con- 
sciousness that  her  death  was  regarded  as  a  consummation  de- 
voutly to  be  wished  for  by  those  who  would  expect  to  profit  by 
her  decease ;  no  regrets  in  such  a  case  except  for  the  undue  pro- 
traction of  the  period  anterior  to  the  inevitable  event;  but 
did  she  say  that  he  premeditated  poisoning  her  with  real 
belief  in  it,  or  was  it  merely  her  habit  of  speaking  in  an 
exaggerated  vein,  characteristic  of  persons  of  more  or  less 
coarse  cultivation?  What  is  there  in  this  testimony  as  to  her 
suspicions  of  poisoning?  If  she  really  believed  that  she  was 
in  danger  of  being  poisoned,  she  would  not  be  apt  to  allow 
the  attempt  to  be  successful  but  would  quickly  rid  herself 
of  the  presence  of  the  designer.  A  woman  of  her  resolute 
will  would  not  hesitate  to  act  at  once  and  thus  end  the  oppor- 
tunity of  the  nefarious  plotter.  This  testimony  is  colored 
and  its  importance  magnified  as  such  points  are  apt  to  be 
by  those  interested  in  presenting  the  features  that  for  their 
purpose  seem  salient ;  but  a  fear  of  poisoning  is  not  unreason- 
able where  elderly  persons  of  wealth  are  aware  that  their 
juniors  are  expectant  of  their  demise.  The  instances  are  not 
few  where  such  hastening  of  the  exit  of  wives  and  others  is 
accomplished,  and  it  is  not  unnatural  or  irrational  in  persons 


Estate  of  Scott.  325 

situated  as  was  this  decedent  to  apprehend  that  impatient 
expectants  might  so  act. 

It  is  not  necessary  to  accuse  the  contestant  of  an  intent  to 
assassinate  his  wife  by  poison  or  otherwise,  for  it  may  be 
conceded  that  there  is  nothing  to  justify  a  suspicion  or  to 
warrant  an  insinuation  of  such  a  design,  and  that  he  is  the 
mildest  mannered  man  that  ever  entered  the  circuit  of  the 
clientele  of  counsel,  but  that  he  contemplated  her  earthly 
exit  in  the  order  of  nature  with  some  sense  of  satisfaction 
and  prospect  of  relief  is  shown  by  the  deposition  of  Charles 
E.  Elliot,  a  venerable  gentleman  of  nearly  four  score  years, 
cousin  of  the  decedent,  who  saw  her  at  her  house  in  San 
Francisco  in  the  latter  part  of  March,  1896,  where  he  met 
her  husband,  the  contestant.  He  had  no  conversation  with 
him  then  and  there,  but  did  have  a  talk  with  him  about  that 
time  at  Mrs.  Scott's  vineyard,  called  the  "Pebble  Side 
Ranch,"  regarding  the  relations  between  himself  and  wife. 
As  near  as  deponent  could  remember,  Scott  said  his  wife  was 
crazy  or  insane ;  that  she  was  very  mean ;  that  she  gave  him 
but  very  little  money;  that  she  treated  his  sons  badly;  that 
she  was  vulgar  and  had  no  religious  principles,  was  very 
jealous,  and  in  short  he  said  about  everything  he  could  that 
was  bad  concerning  her.  Elliot  said  to  him,  "Why  do  you 
live  with  her,  if  she  is  so  bad  as  you  say?"  Scott  answered 
that  he  was  going  to  hold  on ;  that  she  would  die  very  soon 
and  that  his  lawyer  had  told  him  that  she  could  not  make  a 
will  that  would  stand,  and  Mr.  Scott  said  to  the  deponent  on 
that  occasion,  "If  she  don't  make  a  will  to  suit  me.  I  shall 
break  it."  Most  of  the  conversations  deponent  had  with 
decedent  occurred  when  they  were  driving  on  several  occasions 
early  in  April,  1886.  She  spoke  about  Mr.  Scott  and  how 
she  was  disappointed  in  him;  no  help  to  her;  no  business 
capacity;  complete  failure;  she  had  to  do  all  details  herself. 
In  the  opinion  of  Elliot  she  was  level-headed,  smart — a  woman 
of  sound  mind. 

It  is  argued  that  she  had  a  fixed  belief  in  nonexistent  facts 
without  any  atom  of  evidence  to  support  it,  out  of  whioh  it 
was  impossible  to  reason  her  and  that  her  mind  was  infected 
bv  this  insane  delusion  and  no  argument  could  avail  for  its 


326  Coffey's  Probate  Decisions,  Vol.  1. 

disinfection;  but  when  her  physical  condition  is  considered, 
we  may  take  into  account  the  opinion  of  Doctor  Levi  Cooper 
Lane,  given  in  answer  to  the  questions  propounded  in  cross- 
examination  by  counsel  for  contestant : 

Dr.  Lane  said  that  in  case  of  a  person,  described  as  in  the 
question  presented,  who  had  stomach  troubles  and  female 
difficulties,  who  mistakenly  believed  she  was  being  poisoned, 
and  who  almost  daily  insisted  on  her  relatives  tasting  her 
food  before  she  would  touch  it,  when  it  did  not  poison  them, 
and  she  saw  that  it  did  not  have  that  effect,  and  she  yet 
still  maintained  that  her  food  was  being  poisoned,  and  that 
this  continued  for  a  number  of  years,  with  her  surroundings 
and  v/hat  she  told  the  doctor,  if  she  did  not  entertain  such 
a  suspicion,  she  would  have  been  insane ;  her  suspicions  would 
not  be  evidence  of  insanity  in  view  of  all  the  circumstances; 
if  there  were  no  truth  in  the  statements  there  might  possibly 
be  evidence  of  some  incoherence  of  intellect.  A  person 
suffering  from  stomach  trouble  is  almost  necessarily  irritable 
and  may  lose  temper  and  swear  and  cut  up  generally  and 
break  dishes,  destroy  bric-a-brac,  and  play  havoc  with  furni- 
ture, and  yet  be  of  sound  mind.  The  doctor  had  known  cer- 
tainly of  one  occasion  where  one  of  the  most  intelligent  men 
in  this  citv,  as  he  was  regarded  in  his  lifetime,  behaved  in 
such  a  manner,  smashing  chinaware  and  the  like ;  he  was  sane ; 
he  lived  a  long  time  after  this  incident  and  he  was  regarded 
as  an  intelligent  man.  Dr.  Lane  spoke  from  his  knowledge 
of  insanity  based  upon  long  and  extensive  observation. 

It  may  be  conceded  that  she  at  times  feared  poison,  but  if 
it  were  a  delusion,  in  the  circumstances  of  this  issue,  it  must 
have  been  continuous  and  persistent  and  operative  upon  the 
volitional  capacity;  otherwise  it  is  not  to  be  permitted  to 
invalidate  the  testamentary  act :  Estate  of  Redfield,  116  Cal. 
637.  48  Pac.  '794. 

When  suffering  from  the  chronic  condition  of  her  stomach, 
she  may  have  imagined  or  believed  that  her  food  had  been 
tampered  with,  but  her  mistaken  belief  would  not,  as  matter 
of  law,  amount  to  an  insane  delusion :  Estate  of  Carpenter, 
94  Cal.  407,  29  Pac.  1101. 


Estate  of  Scott.  327 

Unfounded  and  unreasonable  suspicions  are  not  insanity : 
Will  of  Cole,  49  Wis.  181,  5  N.  W.  346. 

The  deceased  suffering  from  her  stomach  trouble  was  at 
times  peevish  and  petulant  and  sometimes  suspicious  even  of 
her  best  friends  and  intimated  fears  of  poisoning,  but  never 
acted  on  such  apprehensions,  thus  showing  that  she  had  no 
fixed  delusions  thereon.  She  was  a  naturally  suspicious  per- 
son and  showed  this  characteristic  in  the  lifetime  of  her  first 
husband,  whom  she  undoubtedly  loved.  She  left  his  home 
on  one  occasion  for  several  weeks  on  account  of  suspicion  of 
the  fidelity  of  Collins,  but  he  courted  her  with  a  lover's  assidu- 
ity, and,  induced  by  aroused  affection  and  his  amorous  allure- 
ments, she  returned  to  bed  and  board  and  there  remained 
until  he  died  and  in  token  of  his  love  and  devotion  left  her 
almost  his  entire  fortune,  which  constitutes  the  foundation 
and  bulk  of  the  wealth  in  this  estate. 

For  five  years  she  remained  constant  to  his  endeared  mem- 
ory. During  that  period  of  viduity  the  characteristics  and 
peculiarities  adverted  to  continued  in  manifestation;  indeed 
these  attributes  were  aggravated  by  her  isolated  condition. 
She  was  alone  without  associates  or  congenial  companions;  her 
husband  and  his  friends  had  gone  out  of  her  life  and  she 
naturally  sought  a  substitute  and  successor. 

She  told  Dr.  Lane  that,  after  the  death  of  Mr.  Collins, 
she  had  a  great  deal  of  care  and  trouble  with  the  manage- 
ment of  her  property,  and  she  had  been  advised  by  some  of 
her  friends  to  marry  and  get  somebody  to  assist  in  her  affairs. 
She  had  adopted  this  advice  and  had  accepted  Mr.  Scott 
as  her  spouse,  and  had  assumed  that  he  possessed  the  regular 
business  qualifications  to  make  an  efficient  auxiliary  or  to  act 
as  manager  of  her  property,  but  she  soon  discovered  that 
he  was  destitute  of  ability  to  aid  her  to  any  degree  or  in  any 
manner.  She  found,  in  fact,  as  she  said  to  Dr.  Lane,  that 
his  chief  object  and  main  design  was  to  secure  possession 
of  her  property  and  that  his  purpose  was  entirely  mercenary 
and  selfish,  and  not  any  benefit  to  herself.  She  was  not 
willing  to  allow  him  to  accomplish  his  object  in  this  regard 
and  so  her  domestic  life  was  encompassed  by  unhappiness. 
She  was  very  unhappy   nt    his    conduct.     In    reference    to 


328  Coffey's  Probate  Decisions,  Vol.  1. 

making  a  will  she  solicited  Dr.  Lane's  advice  as  to  what 
measures  of  precaution  or  circumspection  she  could  adopt 
against  any  assault  upon  its  stability  or  legal  integrity,  and 
he  advised  her  to  select  some  two  or  three  gentlemen  of  pro- 
nounced professional  character  and  standing  in  their  spe- 
cialty, who  would  be  conceded  experts  in  their  department  of 
medical  jurisprudence,  to  decide  the  question  of  her  mental 
status  as  to  sanity,  or  at  least  to  be  prepared  to  testify  in  the 
event  of  its  ever  becoming  a  practical  issue  in  any  litigated 
controversy  in  court.  Dr.  Lane  suggested  in  this  connection 
certain  names — Dr.  Clark  of  Stockton,  Dr.  Gardner  of  Napa, 
and  one  or  two  others.  In  their  conversations  about  the  tes- 
tamentary disposition  of  her  property,  the  doctor  said  to  her, 
"Mrs.  Scott,  you  have  a  great  deal  of  property;  you  ought 
to  give  some  to  charity. ' '  She  had  been  talking  about  giving 
it  to  Mr.  Collins'  relatives  and  her  own.  She  replied  that 
she  had  a  great  number  of  relatives  and  she  wanted  to  give 
her  property  so  it  would  help  those  that  were  in  need.  Dr. 
Lane  said  to  her  that  she  ought  to  give  something  to  charity. 
"Well,"  she  answered  to  this  suggestion,  "I  have  enough 
poor  relations  for  that  purpose  and  I  don't  propose  to  give 
anything  in  that  way."  She  visited  the  doctor  a  number  of 
times  on  the  subject  of  her  sanity  until  it  finally  became  tire- 
some. During  the  years  1896  and  1897  he  told  her  that  he 
was  tired  of  the  topic,  and  he  summed  up  the  situation  by 
saying  she  was  as  smart  as  any  woman  he  ever  saw.  She 
called  to  see  Dr.  Lane  several  times  about  the  will  and  about 
her  property.  He  knew  nothing  of  the  facts  except  as  she 
told  him — nothing  personally  about  her  domestic  affairs  or 
her  household.  From  what  Dr.  Lane  observed  of,  her  and 
learned  from  her,  he  considered  her  to  be  perfectly  sane — 
entirely  sound  in  mind.  He  had  known  her  for  many  years, 
when  she  was  Mrs.  Collins,  and  in  the  lifetime  of  her  first 
husband,  and  during  the  last  two  years  of  her  life  she  visited 
him  at  his  office  and  he  visited  her  at  her  residence.  He  was 
not  attending  her  then  as  a  physician.  She  wanted  to  make 
a  will  that  would  stand  in  law,  as  she  had  been  threatened 
that  whatever  will  she  made  would  be  broken  by  her  husband, 
Mr.  Scott.     She  said  that  he  had  made  such  a  threat,  and 


Estate  of  Scott.  329 

in  these  conversations  she  talked  to  Dr.  Lane  about  her  prop- 
erty. If  this  woman  assumed  that  people  were  trying  to  put 
her  in  an  insane  asylum  without  any  iota  of  basis  for  her 
assumption,  and  continued  for  many  years  to  indulge  this 
belief,  still,  in  the  circumstances  of  this  case,  she  might  be 
merely  the  victim  of  erroneous  inference  and  be  perfectly 
sane.  It  might  or  might  not  be  symptomatic  of  insanity; 
the  diagnosis  would  be  dependent  upon  the  entire  congeries 
of  causes  or  summation  of  symptoms.  If  she  accused  her 
husband  falsely  of  holding  improper  relations  with  her 
servants,  black  and  white,  with  her  near  relatives,  very  old 
women,  it  would  seem  that  she  was  very  jealous ;  it  would  not 
be  evidence  of  insanity.  She  might  forget  herself  tempo- 
rarily, but  that  would  not  be  insanity,  even  though  her  husband 
had  given  no  reason  for  her  jealous  suspicion.  Dr.  Lane  should 
say,  regardless  of  the  reason  or  want  of  reason,  while  she 
might  be  irresponsible  for  the  moment  she  would  not  be  in- 
sane, she  had  simply  a  very  jealous  temperament.  If  in  the 
presence  of  some  persons  she  pointed  out  of  her  window  on 
the  lawn  and  said,  "There's  my  husband  and  so  and  so," 
naming  a  third  person  on  the  lawn  with  him,  when  there 
was  no  one  at  all  there,  it  would  be  a  temporary  delusion.  If 
she  pointed  on  the  carpet  in  her  own  room  to  persons  who 
were  present  and  said,  "There  is  Scott  with  so  and  so," 
naming  a  certain  woman,  "engaged  in  sexual  intercourse," 
or  tantamount  words,  when  there  was  no  such  spectacle  nor 
any  person  there,  it  would  to  the  doctor  import  the  offspring 
of  an  inordinately  jealous  mind ;  it  would  be  an  hallucination ; 
the  mind  not  absolutely  normal ;  it  would  be  a  deviation  from 
her  ordinary  and  normal  condition,  but  be  restricted  to  that 
occasion. 

Consider  her  circumstances:  She  was  inordinately  jealous, 
even  in  the  lifetime  of  her  first  husband,  of  whom  she  was 
very  fond,  and  who  was  a  man  after  his  kind,  engaged  in  an 
occupation  that  was  fraught  with  temptations  to  indulgence 
in  liquor  and  developed  in  inducements  to  pleasures  of  the 
palate.  It  is  not  surprising  that  he  drank  occasionally  or 
often  to  excess;  he  did  drink  and  at  times  became  intoxicated 
and   then   would   express  himself   in   indelicate   terms.     His 


330  Coffey's  Probate  Decisions,  Vol.  1. 

wife  acquired  these  habits  and  took  on  the  roughness  and 
grossness  which  were  the  accompaniments  of  the  times  and 
places.  She  was  a  woman  of  strong  characteristics,  strong  be- 
liefs, strong  sentiments,  strong  speech,  and  strong  purposes, 
and  indifferent  to  the  conventionalities  of  the  society  of  the 
later  and  present  era  of  settled  social  form  and  orthodox  ob- 
servances. It  might  have  been  different  with  her  in  a  more 
conservative  community,  although  it  is  not  fair  to  generalize 
from  the  small  premise  of  her  special  surroundings  that  the 
society  of  San  Francisco  was  crude  and  unrefined,  for  we 
know  that  from  a  very  early  date  this  city  contained  its  fair 
proportion  of  as  good  and  true  women  as  ever  adorned  any 
community.  It  is  historical,  and  the  court  has  a  right  to  note 
it,  that  in  the  early  summer  months  of  1849  family  homes 
began  to  appear  in  every  direction  in  San  Francisco,  and  by 
the  fall  of  that  year  they  could  be  said  to  be  numerous,  and 
from  that  time  forward  they  steadily  increased,  and  a  year 
afterward  they  were  a  leading  feature  of  the  young  city,  and 
for  the  next  few  years  not  even  twenty  per  cent  of  the 
population  could  be  subjected  to  criticism  from  the  severest 
censors.  It  is  true  that  the  obnoxious  elements  made  them- 
selves so  conspicuous  and  kept  so  constantly  in  evidence  and 
on  parade  that  one  just  arriving  in  the  city  might  imbibe 
the  impression  that  the  proportion  was  much  larger,  but  that 
this  ratio  is  right  may  be  ascertained  by  authentic  annals, 
such  as  a  work  of  the  late  Hon.  William  F.  White,  entitled 
"A  Picture  of  Pioneer  Times  in  California,"  which  is  valua- 
ble for  its  accurate  data  and  details,  verified  by  a  writer  who 
with  his  family,  one  of  whom  is  now  a  senator  of  the  United 
States,  formed  a  part  of  this  community;  but  nevertheless 
it  does  not  appear  that  the  decedent  cultivated  this  element. 
Her  associations  were  mainly  such  as  centered  and  converged 
and  crystallized  in  that  class  which  found  its  social  circle 
and  status  and  ethical  standard  and  moral  atmosphere  in  the 
saloon,  which  however  reputably  conducted,  was  not  naturally 
nice  or  choice  in  its  conventional  criteria  of  the  proprieties 
of  conversation  or  conduct.  In  other  circumstances  a  more 
pleasing  portrait  might  have  been  presented  of  the  heroine 
of  this  contest,  but  such  as  she  was  we  have  her  here ;  her 


Estate  op  Scott.  331 

stomach  was  weak  and  sensitive  until  this  condition  became 
chronic,  presenting  symptoms  not  ordinarily  understood  by 
the  common  mind;  her  diet  delicate,  mostly  mush,  crackers, 
juice  of  beefsteak,  and  a  very  little  bread;  her  disposition) 
somewhat  affected  by  her  dyspepsia;  prone  to  anger,  in  the 
ebullitions  of  which  she  breaks  dishes  and  destroys  bric-a-brac, 
and  makes  life  very  tropical  for  her  intimates,  employees, 
and  dependents  generally;  while  so  suffering  irritable  and 
disagreeable,  otherwise  a  pleasant  person. 

In  all  these  circumstances  it  is  not  remarkable  that  she  was 
troubled  with  megrims  and  that  her  slumbers  were  broken 
by  nightmare,  when  she  had  an  hallucination  that  a  murder 
had  been  committed  in  the  hall  of  her  house,  which  incident 
may  have  resulted  from  her  oversizing  her  drams  of  whisky, 
for,  according  to  Mrs.  Meily,  she  was  an  habitual  and  hard 
drinker  of  alcohol  during  her  latter  years,  and  an  extra 
dose  of  this  sort  of  poison  may  have  been  the  cause  of  this 
nocturnal  aberration.  Mrs.  ]\Ieily  testified  that  she  had  seen 
her  aunt  Angelia  several  times  under  the  influence  of  liquor, 
and  it  may  have  been  that  upon  this  occasion,  when  his  step- 
mother told  Wesley  Scott  that  some  one  was  being  murdered 
in  the  hallway,  when  no  such  transaction  was  in  progress,  that 
her  aspect  was  so  dazed  and  distraught  as  to  suggest  that 
the  whisky  had  been  exceptionally  potent.  The  distemper 
of  drink  may  have  wrought  this  transient  condition  of  her 
nerves  and  temporarily  disturbed  the  diapason  of  her  wits. 

She  was  at  times  troubled  with  insomnia,  as  was  natural 
with  one  who  was  afflicted  with  an  intestinal  disease,  and 
then  momentarily,  like  Lady  Macbeth,  "she  was  troubled 
with  thick-coming  fancies  that  kept  her  from  her  rest,"  but 
her  mind  was  not  necessarily  diseased. 

She  was  a  very  nervous  and  unhappy  woman,  and  what 
did  her  husband  do  to  alleviate  her  distress  ?  She  was  living 
unhappily  M'ith  him  and  he  was  tolerating  her  for  the  sake 
of  the  future  when  he  hoped  to  possess  and  enjoy  her  for- 
tune. Why  did  she  marry  Scott?  Was  it  for  love,  or  was 
it  merely  a  commercial  union?  Was  it  solely  that  she  might 
have  a  domestic  partner  who  could  manage  her  affairs,  pro- 
tect her  property,  and  relieve  her  of  the  strain  of  business 


332  Coffey's  Probate  Decisions,  Vol.  1. 

cares?  The  truth  seems  to  be  that  her  motive  was  com- 
posite, and  the  reasons  she  gave  from  time  to  time  are  recon- 
cilable to  this  theory.  She  needed  some  one  as  an  affectionate 
associate  in  married  life — some  one  to  supply  the  love  element 
in  her  nature  and  to  attend  to  her  material  interests  at  the 
same  time,  and  when  she  came  in  contact  with  Scott  she 
imagined  that  she  had  attracted  her  affinity  in  both  regards, 
but  this  may  have  been  an  insane  delusion,  for  a  short 
experience  caused  her  to  rue  the  day  she  married  him;  they 
were  married  but  not  mated,  and  hence  infelicity.  Two 
motives  entered  as  ingredients  in  her  choice  of  him,  only 
one  in  his  selection  of  her;  his  was  a  merely  mercenary 
motive.  She  craved  for  something  more  than  money ;  she 
believed  that  Scott  could  fill  the  aching  void  in  her  heart ; 
that  she  could  find  in  him  a  suitable  successor  to  her  deceased 
spouse;  but  it  was  a  bitter  disappointment  in  every  respect. 
The  contract  so  far  as  sentiment  went  was  unilateral;  she 
wanted  a  conjugal  mate  who  would  relieve  her  head  from 
business  cares  and  occupy  the  vacant  space  in  her  heart  and 
the  vacant  chair  at  the  table  once  filled  by  Collins,  but  Scott 
married  her  for  money;  his  motive  was  mercenary  and  mar- 
ital misery  followed  from  his  incompatibility  and  incapacity. 
In  true  love  and  as  a  business  union  this  marriage  was  a 
failure.  She  was  jealous,  and  in  the  philosophy  of  love  it  is 
said  that  this  malign  sentiment  is  its  bitter  fruit,  and  it  sur- 
vives youth,  especially  in  women.  But  it  was  different  with 
him;  he  was  not  jealous,  for  he  loved  her  not,  although  he 
had  once  listened  to  her,  pretending  to  reciprocate,  when  she 
said  she  loved  him,  for 

"When  a  woman  loves  a  man 
The  man  must  hear  her,  though  he  love  her  not. ' ' 
Why  did  she  love  him?     Is  human  love  the  growth  of 
human  will?     These  are  questions  that  only  a  woman  can 
answer,  and  the  age  is  not  yet  so  far  advanced  that  she  can 
make  response  in  judicial  decision. 

"It  is  not  virtue,  wisdom,  valour,  wit. 
Strength,  comeliness  of  shape,  or  amplest  merit 
That  woman's  love  can  win,  or  long  inherit 
But  what  it  is,  hard  to  say,  harder  to  hit." 


Estate  of  Scott.  333 

It  is  enough  to  say  that  there  is  evidence  in  this  record  that 
she  did  love  him,  but  the  love  was  not  mutual  and  did 
not  bring  life's  discords  into  perfect  tune.  Her  passion  was 
unrequited  and  she  was  conscious  that  he  did  not  return  in 
sincerity  the  sentiment  that  he  professed  before  marriage 
and  at  the  altar.  Jealousy  is  said  to  be  the  offspring  of  love, 
and  this  was  decedent's  only  child.  She  was  enamored  of 
Scott  and  in  her  passion  was  constantly  thinking  and  talking 
of  him,  for  it  is  true,  as  George  Eliot  tells  us,  that  jealousy 
can  no  more  lose  sight  of  its  object  than  love. 

In  regard  to  him  it  may  be  said  that  for  the  purpose  of 
passion  it  would  not  be  natural  to  seek  satisfaction  in  the 
embraces  of  antiquity,  and  it  is  fair  to  assume  that  her  com- 
plaint that  he  was  not  a  husband  to  her  was  founded  on 
fact,  although  he  testified  that  he  was  a  husband  to  her  up  to 
the  day  of  her  death,  with  all  that  that  implies,  but  this  state- 
ment is  antagonized  by  her  declarations  and  by  circum- 
stances that  render  its  truth  improbable.  It  may  be  con- 
ceded that  her  suspicions  of  the  fidelity  of  contestant  per- 
sisted in,  as  it  is  claimed  they  were,  without  evidence  to 
support  them  and  against  all  reasonable  probabilities  of 
truth  have  the  semblance  of  insane  delusion.  Yet  it  is  not 
necessarily  so. 

Observation  teaches  us  that  there  is  a  very  large  class  of 
people,  whose  sanity  is  undoubted,  who  are  unduly  jealous 
or  suspicious  of  others,  and  especially  of  those  closely  con- 
nected with  them,  and  who  upon  the  most  trivial,  even 
whimsical,  grounds  will  wrongfully  impute  the  worst  mo- 
tives and  conduct  to  those  in  whom  they  ought  to  confide. 
This  insanity,  which  is  developed  in  a  great  variety  of  forms, 
is  altogether  too  common,  and  too  many  persons  confessedly 
sane  are  to  a  greater  or  less  degree  afflicted  with  it,  to 
justify  us  in  saying  that  because  the  deceased  was  so  afflicted 
she  was  insane,  or  the  victim  of  insane  delusion.  The  line 
between  unfounded  and  unreasonable  suspicions  of  a  sane 
mind  (for  doubtless  there  are  such)  and  insane  delusions 
is  sometimes  quite  indistinct  and  difficult  to  be  defined. 
However,  the  legal  presumption  is  in  favor  of  sanity,  and 
on  the  issue  of  sanity  or  insanity  the  burden  is  upon  him 
who  asserts  insanity  to  prove  it.     Hence  in  a  doubtful  ease. 


334  Coffey's  Probate'  Decisions,  Vol.  1. 

unless  there  appears  a  preponderance  of  proof  of  mental 
unsoundness,  the  issue  should  be  found  the  other  way:  Will 
of  Cole,  49  Wis.  181,  5  N.  W.  346. 

She  was  suspicious  of  his  constancy.  Suspicion  is  the  im- 
agination of  the  existence  of  something,  especially  something 
wrong,  without  proof,  or  with  but  slight  proof;  it  is  an  im- 
pression in  the  mind  which  has  not  resulted  in  a  conviction. 
It  is  synonymous  with  doubt,  distrust,  or  mistrust — the  mind 
is  in  an  unsettled  condition.  Suspicion  existing,  slight  evi- 
dence might  produce  a  rational  ultimate  conviction  or  con- 
clusion ;  this  without  evidence  however  slight,  would  be  a  de- 
lusion. Is  there  evidence,  however  slight?  This  is  the  test. 
The  suspicion  may  be  illogical  or  preposterous,  but  it  is  not, 
therefore,  evidence  of  insanity:  Clapp  v.  Fullerton,  34  N. 
Y.  190,  90  Am.  Dec.  681. 

A  most  unwilling  witness  was  Mrs.  Louisa  M.  Putman, 
who  was  very  reluctant  to  testify  and  who  said  that  her 
husband,  Dr.  Putman,  had  been  greatly  opposed  to  her  com- 
ing forward  in  that  capacity.  She  came,  however  under 
constraint,  and  under  the  subpoena  of  proponents,  being 
served  with  great  difficulty,  and  here  is  her  story  in  short 
meter : 

Mrs.  Putman  first  saw  Mr.  Scott  at  Mrs.  Meily's  house, 
730  Union  street,  between  Powell  and  Mason,  in  or  about 
January  1895,  at  the  bedside  of  Mrs.  Meily's  sick  son,  who 
Vi'as  the  husband  of  the  witness  and  who  died  in  Januarj^; 
1895,  and  was  buried  from  that  house.  She  could  not  say 
definitely  how  often  she  saw  Mr.  Scott  in  1895  and  1896, 
but  it  was  several  times.  He  usually  called  in  the  morning 
about  10  or  11  o'clock,  on  week  days;  sometimes  in  the  after- 
noon; he  would  remain  sometimes  fifteen  or  twenty  minutes 
or  perhaps  half  an  hour,  sometimes  an  hour.  Mrs.  Putman 
knew  the  decedent  and  visited  her  shortly  before  she  died. 
Mr.  and  Mrs.  Scott  were  there  several  times  during  the  ill- 
ness of  the  husband  of  the  witness.  Mrs.  Scott  introduced 
Mr.  Scott  to  the  witness  there.  He  always  conducted  him- 
self with  propriety  in  the  presence  of  the  witness.  Wit- 
ness was  not  residing  with  Mrs.  Meily  but  would  stay  a  week 
or  so  at  a  time  when  she  was  not  otherwise  occupied  at  work. 
If  witness  happened  to  be  unemployed   at  her   occupation 


Estate  of  Scott.  335 

she  would  pay  Mrs.   Meily  a  short  visit,   merely  that  and 
nothing    more.     "When    employed    witness    was    engaged    at 
dressmaking.     She   could   not   say   definitely   how   long   she 
spent  at  a  time  at  Mrs.  Meily 's  but  was  there,  she  thought, 
in  the  months  of  January,  February,  or  March,  1896.     Two 
months  was  the  longest  period  of  time  she  was  in  that  house 
continuously  after  she  was  married  to  the  son  of  Mrs.  INIeily, 
but  she   could  not  name   the   two   montlis.     Sometimes   she 
would   call   of  an   afternoon.     Witness  -was   nursing   at   the 
time  and  it  would  depend  when  she  would  obtain  relief — 
sometimes  in  the  forenoon  and  other  times  in  the  afternoon. 
While  she  was  on  friendly  terms  whenever  she  had  a  little 
time  off  she  visited  ]Mrs.  Meily.     She  first  saw  Mrs.   Scott 
at  her  house  in  August,  1897.     No  one  told  her  to  go  but  she 
guessed  she  was  moved  by  a  malicious  feeling  on  her  part 
toward  Mrs.  Meily,  against  W'hom  she  had  a  grievance.     Wit- 
ness had  heard  that  Mrs.  ]\Teily  had  spoken  unkindly  of  her 
and  she    felt    unfriendly    about    it.     They    never    had    any 
words,  no  quarrel,  but  some  stories  were  repeated  as  coming 
from  Mrs.  ]\Ieily  that  annoyed  Mdtness,  so  she  thought  she 
would  be  justified  in  retaliating  by  retailing  some  account 
of  Mr.  Scott's  visits  to  Mrs.  Meily.      She  first  went  to  Mrs. 
Garcia,  who  refused  to  tell  Mrs.  Scott;  told  witness  to  tell 
her  herself;  witness  then  went  and  saw  ]\Irs.  Scott  and  be- 
gan telling  her  about  Mr.   Scott  visiting  Mrs.  Meily.     Mrs. 
Scott  said  she  knew  that  already  and  told  witness  that  she 
would  give  her  $500  if  she  would    put    in    writing    charges 
against  Mr.  Scott    that    would    incriminate    him    with    j\Irs. 
]\Ieily.     Witness    could    not    remember    all    that  Mrs.  Scott 
wanted  on  the  paper  which  she  desired  her  to  sign.     It  was 
not  exactly  the  writing  of  the  witness,  who  never  made  any 
remark  that  improper  relations  existed  between  ]\Ir.   Scott 
and  Mrs.  Meily,  or  that  she  ever  saw  anji;hing  of  the  kind. 
After  the  first  visit    ^Nlrs.    Scott   began    sending   the    house- 
keeper, Mrs.  Burnham,  down  to  ask  the  witness  to  call  and 
see  her.     She  visited  jNIrs.  Scott  again  after  the  August  visit 
in   response  to   a  request  conveyed  to  her  in   letters.     The 
witness  wrote  a  letter  to  INIrs.  Scott  about  the  first  part  of 
September,  1897,  in  the  following  words: 


336  Coffey's  Probate  Decisions,  Vol.  1. 

"You  told  me  .you  would  say  nothing  that  would  bring 
me  into  family  affairs,  in  fact  would  not  mention  my  name. 
Now  I  am  willing  to  face  anything  I  say,  but  to  be  mixed 
up  in  family  troubles,  I  beg  you  will  refrain  from  asking  me 
to  do  such.     What  I  told  you  was  for  your  own  personal 

good Mr.   Scott  said  Mrs.   Meily  was  crying  all  the 

time  over  it.     How  did  he  know  it?     If  you  did  not  give 
him  the  address  here,  who  did  ?     Perhaps  ]Mrs.  Meily  ? ' ' 

That  letter  speaks  of  Scott ;  he  called  on  witness  and  said 
that  ]\Irs.  Garcia  has  told  his  wife  a  great  deal  or  that  Mrs. 
Garcia  had  said  to  him  that  witness  had  told  or  said  a  great 
many  things  about  him,  and  he  asked  witness  if  she  had 
anything  against  him.  She  said  she  had  not.  He  was  a 
perfect  stranger  to  her  in  the  first  place,  and  he  told  her 
that  his  wife  and  he  had  some  trouble  and  that  she  had  ac- 
cused him  of  acts  that  were  purely  imaginative,  simply  what 
she  herself  thought,  and  remarks  that  the  witness  was  sup- 
posed to  have  made  with  regard  to  improper  relations,  and 
witness  denied  that  she  ever  said  so;  but  there  is  the  letter, 
and  it  speaks  for  itself.  Mrs.  Scott  told  the  witness  that 
she  had  been  to  Mrs.  Meily 's  house  twice  in  one  day,  that 
she  could  not  get  in  and  went  away  and  came  back  again, 
she  said  that  she  knew  Scott  was  inside  because  she  felt 
something  from  within,  the  influence  of  his  personality,  mag- 
netism, or  something  of  that  sort. 

It  is  not  necessary  to  inculpate  the  suspects  in  such  a 
case;  it  is  enough  that  there  were  circumstances  in  the  asso- 
ciation of  the  persons  to  impress  the  jealous  mind,  and  the 
evidence  of  ]\Irs.  Putman  so  reluctantly  and  cautiously 
educed,  even  were  it  but  a  feather's  weight,  shows  that  de- 
cedent had  material  for  suspicion.  There  was  at  least  slight 
evidence  that  her  husband  was  visiting  another  lady  clan- 
destinely and  surreptitiously,  and  that  was  enough  to  remove 
the  stigma  of  insane  delusion,  although  by  no  means  suffi- 
cient to  justify  this  court  in  concluding  that  her  niece  was 
guilty  of  misconduct.  Mrs.  Meily 's  entire  innocence  in  in- 
tent and  act  is  consistent  with  the  ill-timed  and  indiscreet 
visits  of  Scott  to  her  house,  so  far  out  of  his  direct  course 
from  his  own  home  to  his  office. 


Estate  of  Scott.  337 

Xo  matter  how  tenuous  these  threads  of  testimony  are, 
they  are  sufficient  to  support  her  suspicion.  In  regard  to  the 
caressing  of  the  servant  girl  it  was  denied  by  Mr.  Scott  when 
on  the  witness-stand.  In  reference  to  the  Meily  matter  Mrs. 
Burnham  testifies  that  Mrs.  Putman  came  to  Mrs.  Scott  with 
a  story  about  Mrs.  Meily.  Mrs.  Meily  testifies  that  Scott 
did  visit  her  repeatedly,  at  her  home,  730  Union  street,  on 
his  way  down  town  from  Franklin  and  Sacramento  street 
to  his  office  in  the  Merchants'  Exchange.  It  is  only  neces- 
sary to  indicate  these  points  of  departure  and  terminus  in 
his  daily  travel  to  illustrate  at  what  inconvenience  of  time 
and  circuitousness  of  route  he  paid  these  visits  to  her  alone 
and  in  the  absence  of  her  husband.  Mrs.  Putman  knew  of 
these  visits  and  testified  that  she  went  to  Mrs.  Scott  with  a 
story  about  Mrs.  Meily  for  the  purpose  of  maliciously  injur- 
ing that  lady,  but  whatever  was  her  purpose  or  her  griev- 
ance, she  added  fuel  to  the  flame  of  jealousy  already  exist- 
ing in  the  mind  of  Mrs.  Scott,  who  was  impressed  by  her 
tale.  Still  there  was  no  ultimate  conviction  in  her  mind; 
she  had  doubts;  and  constantly  sought  information  to  re- 
solve them.  She  employed  detectives,  who  seemed  to  have 
deceived  her  and  conveyed  their  stories  to  her  husband,  with 
whom  they  have  been  since  on  intimate  terms.  She  offered 
rewards  of  proof  of  the  facts;  tried  her  own  hand  at  detec- 
tive work;  visited  Mrs.  Meily  to  ascertain  the  truth;  inter- 
viewed Mr.  Scott's  gentlemen  friends  to  elicit  information; 
and  in  many  ways  showed  that  she  had  no  fixed  belief  of 
Scott's  infidelity,  and  the  statements  on  that  subject  which 
she  made  were  mainly  to  Scott's  particular  friends  and  her 
servants  who  faithfully  communicated  them  to  him  and  have 
since  reproduced  them  in  evidence.  William  Warwick  is  a 
sample  of  those  who  practiced  the  system  of  espionage  in 
her  behalf.  ]\Irs.  Burnham  is  another  who  made  a  pretense 
of  acting  as  a  spy,  disguising  herself  and  deceiving  her 
mistress,  to  save  her  situation.  This  lady  naively  confesses 
that  she  practiced  deceit  and  duplicity  and  did  not  even 
make  an  attempt  to  act  the  part  she  pretended  to  play;  but 
she  failed  to  save  her  situation,  leaving  there  on  the  4th  of 
December,  1897,  and  did  not  return  to  the  service  during 
the  lifetime  of  decedent.     Subsequently  she   did  so   return 

Prob.  Dec,  Vol.  I — 22 


338  Coffey's  Probate  Decisions,  Vol.  1. 

and  is  now  an  inmate  of  the  Scott  mansion.  In  respect  to 
this  item  of  infidelity,  it  may  be  said  that  there  being  slight 
evidence  to  support  suspicion  there  was  no  delusion ;  and  there 
being  no  settled  conviction,  there  is  no  delusion. 

Was  the  expressed  apprehension  of  the  decedent  that  con- 
testant had  conspired  to  confine  her  in  an  asylum  an  insane 
delusion  ? 

There  is  evidence  ample  in  the  record  that  Scott  twitted 
her  from  time  to  time  with  being  crazy,  and  said  that  he 
could  break  any  will  that  she  would  make,  and  he  is  here 
now  engaged  in  the  execution  of  that  threat.  That  he 
taunted  her  with  his  ability  to  set  aside  her  will,  as  he  could 
prove  her  insanity  and  that  he  nagged  her  on  this  point  with 
the  view  of  instilling  into  her  mind  some  doubt  of  its  sound- 
ness is  established  to  the  satisfaction  of  the  court.  Undoubt- 
edly this  worried  and  annoyed  her,  and  it  was  but  natural 
that  she  should  entertain  an  apprehension  that  he  and  his 
close  friends  might  conspire  to  that  end.  The  testimony  of 
Carl  Anderson,  the  coachman,  although  denied  stoutly  by 
contestant,  is  circumstantially  credible  in  respect  to  the  con- 
versation in  the  coupe;  that  they  had  a  quarrel  on  the  way 
out  to  the  Cliff  House,  where  Scott  left  and  she  returned 
alone  in  the  vehicle  driven  by  Anderson,  is  certainly  true, 
and  I  can  perceive  no  evidence  of  animus  in  this  witness 
against  contestant  to  justify  me  in  rejecting  his  testimony 
Anderson  may  himself  have  said,  as  is  testified  to  by  the  im- 
peaching witnesses,  that  she  was  "crazy"  or  "absent- 
minded,"  or  he  may  merely  have  advised  some  of  the  per- 
sons employed  by  her  or  others  not  to  mind  her  quick  tem- 
per or  swearing  as  she  did  not  mean  it,  but  that  does  not 
authorize  the  court  to  discard  or  discredit  his  entire  state- 
ment. Mr.  Ball,  recalled  to  impeach  this  witness,  testified 
that  Carl  Anderson  said  to  him  in  his  office  on  or  about 
February  1,  1890,  that  Mrs.  Scott  was  crazy.  Anderson 
came  to  the  office  of  Ball  on  some  errand  for  Mr.  Scott,  who 
was  absent  at  the  moment.  Ball  asked  Anderson,  "How  is 
the  old  lady?"  and  Anderson  answered,  "Just  as  crazy  as 
ever."  In  this  connection  it  may  be  worth  while  to  allude 
again  to  Mr.  Ball's  evidence.  Mr.  Ball  was  present  when 
the  decedent  was  married  to  contestant,  who  had  an  office 


Estate  of  Scott.  339 

with  him  at  that  time,  dating  back  to  1884  or  1885.  When 
Seott  was  east,  Ball  visited  her  two  or  three  times  a  week 
and  remained  there  from  6  or  7  to  any  hour  up  to  12  in  the 
evening',  and  continued  to  visit  her  up  to  1892,  but  did  not 
remember  being  there  in  1893.  She  visited  Ball's  office  in 
1892  and  asked  him  if  she  looked  crazy  enough  to  be  put 
into  an  insane  asylum.  "I  thought  perhaps  it  was  one  of 
her  lucid  intervals."  In  1890  she  said  to  Scott  in  the  pres- 
ence of  Ball,  "That  E.  W.  wanted  to  look  out  or  she  would 
use  a  pistol  on  him."  During  Scott's  absence  in  the  east 
Ball  was  at  her  house  twice  a  week  for  four  months ;  her 
conversation  was  continually  on  the  same  topic  and  was  very 
tedious  and  tiresome — indeed,  became  very  monotonous. 
One  time  they  had  a  drink  together;  they  were  in  the  din- 
ing-room and  she  went  out  of  the  room  and  brought  the 
whisky  in  a  small  decanter.  Sometimes  he  would  go  there 
and  dine  with  her ;  other  times  he  would  go  there  immediately 
after  taking  his  dinner,  say  about  half-past  seven  in  the 
evening,  and  on  one  occasion  in  the  course  of  her  conversa- 
tion, doubtless  after  draining  the  decanter,  Mr.  Ball  paints 
a  vivid  picture  of  an  incident  that  occurred  consequent  upon 
a  remark  he  made  to  her.  "She  instantly  became  like  an 
enraged  tigress — jumped  up  from  the  table.  Her  counte- 
nance changed,  and  she  looked  like  a  fiend.  Her  eyes  hung 
out  of  her  head,  and  she  smashed  the  table,  a  marble-topped 
table  and  she  said:  Mr.  Ball  then  recites  the  language  of 
this  fiend-like  woman  after  she  had  jumped  up  in  the  man- 
ner of  an  enraged  tigress  and  with  her  paw  fractured  the 
marble-topped  table.  Mr.  Ball's  delineation  of  this  unfor- 
tunate victim  of  morbid  delusion  was  realistic  in  the  extreme. 
Her  appearance,  attitude,  and  action  so  artistically  arranged 
in  Mr.  Ball's  description  portray  one  demoniacally  possessed. 
Uhlhorn  testifies  that  when  he  was  introduced  to  Mrs.  Seott 
by  ]\Ir.  Scott  in  August,  1891,  the  first  thing  she  said  to  him 
was  that  Mr.  Scott  and  Mr.  Ball  were  trying  to  railroad  her 
to  the  insane  asylum. 

It  is  a  curious  fact  if  this  woman  were  as  crazy  as  they 
would  make  her  out  through  all  these  years,  from  1890  to 
her  death  in  December,  1897,  and  if  she  had  murderous 
designs,  as  some  of  them  say,  that  they  would  care  to  visit 


340  Coffey's  Probate  Decisions,  Vol.  1. 

her  or  live  with  her  or  be  under  the  same  roof  in  such  close 
and  constant  intimacy  with  a  dangerous  lunatic. 

Anderson  testifies  without  appearance  of  bias,  and  on  the 
whole  seems  well  disposed  toward  Scott,  who,  he  says,  was 
quiet  and  good  tempered,  as  a  rule,    although    at    times    he 
would  provoke  her.     Scott  is  a  superficially  smooth,  plausible 
man,  with  a  pleasing  exterior,  and  understood  his  interest 
sufficiently  to  curb  such  temper  as  he  had,  at  times  mani- 
fested some  spirit,  when  thrown    off    his    guard;    but    Carl 
Anderson  does  not  appear  to  have  any  ill-will  toward  him, 
and  when  he  relates  what  occurred  on  the  trip  to  the  beacb. 
and  what  he  told  Scott  at  the  stable  in  answer  to  his  inquiry 
as  to  what  she  said,  after  Scott  left  the  coupe  at  the  Cliff, 
there  seems  no  sufficient  ground  to  doubt  it.     Mr.  Scott  on 
his  recall  denied  the  main  feature  of  Carl's  statement  and 
said  ''he  was  never  in  the  habit  of  making  a  confidant  of 
servants,"  but  it  appears  that  the  coachman  was  an  old  ser- 
vant of  eleven  years'  standing,  and  such  servants  are  often 
the  voluntary  or    involuntary    recipients    of    family    confi- 
dences.    It  is  fair  to  infer  from  this  and  other  statements 
in  the  record  that  Scott  did  say  what  was  imputed  to  him 
and  tormented  her  with  insinuations  as  to  her  sanity.     She 
was   thus   led   to    believe   that   he    desired   to   have   her   so 
situated  that  he  could  enjoy   the    fortune    for   the   sake    of 
which  he  married  her,  and  that  when  he  should  be  no  longer 
handicapped  by  her  presence  he  would  pursue  the  path  of 
pleasure  unmolested  so  long  as  her  wealth  would  be  under 
his  control  without  interference  from  her.     There  was  some 
evidence  then  to  support  this  belief,  and  it  was,  therefore, 
not  an  insane  delusion. 

It  is  proper  to  note,  without  invidious  reflection,  that  the 
witnesses  for  the  contestant  may  be  placed  in  two  categories : 

1.  The  intimate  and  personal  friends  of  the  contestant, 
E.  W.  Scott. 

2.  Persons  who  for  a  period  were  in  the  employ  of  the 
testatrix,  Mrs.  Scott,  and  who  failed  to  retain  their  situa- 
tions, and  who  for  one  reason  or  other  have  been  dissatisfied. 

Among  these  in  the  first  category  we  find  Hammond,  the 
friend  and  office  companion  of  contestant;  Dyer,  personal 
friend  introduced  by  Scott ;  Perkins,  personal  friend ;  Estella 


Estate  of  Scott.  341 

Burnham,  private  seamstress,  and  now  in  the  employ  of  con- 
testant ;  Morton,  the  bookkeeper,  personal  friend  introduced 
by  Scott;  and  Uhlhom,  another  personal  friend  of  contest- 
ant. 

In  the  second  category,  Catherine  O'Connor,  who  was 
employed  in  a  sort  of  general  capacity  doing  all  that  there 
was  to  do  and  doing  all  the  talking  with  Mrs.  Scott,  and  did 
more  talking  with  her  than  anything  else,  arid  who  from  the 
voluble  manner  in  which  she  gave  her  testimony  was  quite 
capable  in  that  respect ;  Joseph  Mortier,  orchardist  and  wine- 
maker  of  the  vineyard;  Ida  Gustafson,  Sena  Cook,  Ulrica 
Anderson,  house  servants ;  Talman,  the  chicken-man ;  Mrs. 
Mary  J.  Larmer,  nurse  in  house  of  Mrs.  Meily's  mother; 
Fred  Bockwoldt,  erstwhile  foreman  at  the  Scott  ranch;  Mrs. 
Ella  Joseph,  colored  domestic  in  the  Scott  mansion;  Froe- 
lieh,  the  wine  broker  who  had  litigation  with  Mrs.  Scott ; 
O'Dea,  the  plumber;  and  finally  Elizabeth  Jane  Richards, 
who  worked  for  her  from  1890  until  the  death  of  testatrix, 
in  December,  1897,  and  whose  testimony  can  hardly  be 
treated  with  the  traditional  tongs,  but  as  a  specimen  of  her 
feeling  toward  the  deceased  this  charitable  observation  may 
be  culled  from  the  record:  "Mrs.  Scott  said  that  she  would 
be  dead  and  stiff  in  hell  by  Christmas  day.  I  guess  she  was. ' ' 
This  witness  made  this  remark  professing  at  the  same  time 
to  have  been  very  friendly  with  the  decedent.  As  a  sample 
of  her  reckless  statements  on  the  stand  reference  may  be 
made  to  her  testimony  that  decedent  employed  and  dis- 
charged as  many  as  three  girls  in  a  day,  and  that  they  would 
not  stay  because  her  language  and  habits  were  so  bad,  and 
that  there  was  not  food  enough  for  them.  When  the  court 
called  the  attention  of  this  witness  to  the  fact  that  three 
girls  a  day  would  be  many  in  a  month,  she  responded  that 
she  did  not  think  that  decedent  had  so  many  in  a  month 
but  she  had  one  every  day  in  the  month.  This  woman's 
extraordinary  nerve  in  voluntarily  narrating  incidents 
from  which  even  a  degenerate  masculine  mind  would  revolt 
was  so  abnormal  as  to  shock  every  one  within  hearing  and 
to  cause  the  counsel  for  contestant  to  suggest  that  if  it  were 
to  continue,  the  case  had  better  proceed  with  closed  doors; 
yet  she  affected  delicacy  in  reciting  the   remarks    of    dece- 


342  Coffey's  Probate  Decisions,  Vol.  1. 

dent,  saying  she  could  not  explain  all  the  language  used.  "A 
man  might  do  it;  not  a  lady."  Yet  notwithstanding  the 
brutish  behavior  and  ineffable  grossness  of  the  decedent, 
from  the  first  day  to  the  last,  this  lady  remained  with  her 
for  eight  years. 

Mr.  Estee,  of  counsel  for  contestant,  in  commenting  on  the 
mode  of  conducting  trials  of  this  kind,  made  some  remarks, 
the  substance  of  which  the  court  has  preserved,  because  of 
their  general  value.  He  said  that  the  asperities  generated 
in  the  course  of  controversy  should  cease  when  the  time  for 
argument  arrives;  then  the  heat  of  the  trial  being  over  the 
cool  reason  only  should  govern ;  the  abuse  of  one  attorney 
by  another  is  not  argument  and  can  avail  nothing  before  a 
court  constituted  to  try  a  cause,  nor  is  the'  abuse  of  witnesses 
serviceable  in  the  illustration  of  the  important  issues  in  such 
a  case.  Most  men  and  women  are  honest,  women  as  a  rule 
more  so  than  men,  but  the  intentions  of  most  are  upright 
and  desirous  of  honest  dealing's.  Some  men  make  poor  wit- 
nesses, most  women  show  to  poor  advantage  on  the  witness- 
stand,  but  that  is  not  because  they  are  not  telling  the  truth 
but  because  they  are  so  constituted  that  their  feelings  are 
enlisted  and  their  sensibilities  are  superior  to  those  of  men 
and  not  so  easily  controlled.  It  is  proverbial,  therefore, 
that  women  are  poor  witnesses;  so  with  old  men,  who  seldom 
do  well  when  under  examination  of  counsel  in  court;  they 
mean  to  testify  truthfully,  but  because  of  age  or  sex  are 
easily  disturbed  in  their  train  of  thought  and  current  of  con- 
nected discourse.  Counsel  therefore  did  not  undertake  to 
descant  upon  the  duplicity  or  deceit  or  falsehood  of  wit- 
nesses whom  he  did  not  believe  to  be  in  any  way  guilty  of 
perjury,  but  who  by  reason  of  feeling  or  age,  or  other  natural 
accident  of  constitution,  may  have  colored  or  exaggerated 
or  innocently  diminished  or  distorted  the  facts  in  their 
testimony.  Counsel  has  the  greatest  respect  for  Dr.  Lane 
personally  and  in'  his  professional  character,  but  thought  his 
feelings  dominated  his  evidence;  as  for  Mrs.  Richards,  he 
did  not  think  she  was  a  good  witness,  but  she  was  entitled 
to  animadversions  to  no  such  extent  as  was  indulged,  and 
counsel  for  contestant  knew  her  to  be  a  good  woman  not- 


Estate  of  Scott.  343 

withstanding  the  unpleasant  tenor  of  her  testimony,  which, 
being  the  truth,  she  was  bound  to  disclose. 

The  court  is  in  perfect  accord  with  the  sentiments  of  the 
learned  counsel,  and  if  the  lady  whose  testimony  has  been 
presented  has  been  dealt  with  unfairlj^,  she  may  abide  by 
the  record  which  will  be  the  final  test  for  all  concerned. 

Opposed  to  the  witnesses  enumerated  are  those  for  the  pro- 
ponents, whose  character  and  standing  are  not  challenged, 
save  in  some  exceptional  cases,  such  as  poor  Pontus  Ahlstedt, 
whose  prenomen  provoked  a  pun,  and  Carl  Anderson,  whom 
counsel  for  contestant  thought  it  not  necessary  to  abuse  be- 
cause he  was  a  poor,  ignorant  man  who  got  mixed  up  in 
his  memory  and  substituted'  imagination,  as  much  as  he  had 
of  it,  for  actual  occurrences,  and  counsel  thinks  it  is  charity 
to  Carl  to  say  he  was  mistaken;  but  as  to  the  others,  they 
are  let  off  lightly,  with  the  suggestion  that  they  are  mere 
business  acquaintances  and  not  up  to  the  standard  of  Uhl- 
horn,  Dyer,  Perkins,  Richards,  and  the  others  already  cited 
and  quoted;  but  many  of  them  had  large  opportunities  to 
•observe  and  belonged  to  an  intelligent  and  discerning  order 
of  observers ;  if  their  testimony  was  of  the  negative  kind, 
in  some  instances,  it  was  of  a  high  character  and  from  per- 
sons not  apt  to  be  deceived  or  mistaken,  and  met  the  improb- 
ability of  much  of  contestant's  positive  or  affirmative  evi- 
dence. 

In  connection  with  the  witnesses  for  the  contestant  there 
are  many  circumstances  of  suspicion  giving  color  to  their 
testimony.  Some  of  these  suspicious  circumstances  may  be 
mentioned ;  such  as  the  method  of  introduction  of  Major 
Hammond,  IMr.  Scott's  office  companion;  the  peculiarities 
surrounding  the  sudden  desire  of  Scott  to  introduce  Uhlhorn 
leaving  Uhlhorn  alone  with  her;  the  dinner  which  followed 
at  which  Scott  did  not  participate ;  after  that  the  dinner 
at  the  invitation  of  Scott;  the  scene  in  the  parlor  when  she 
was  left  alone  again  with  Uhlhorn ;  the  suggestion  of  Uhl- 
horn at  his  first  visit  that  she  was  crazy;  the  line  of  real 
estate  men  introduced  by  Scott  to  sell  her  property,  and 
the  care  and  zeal  with  which  they  pursued  their  wealthy 
(juarry :  the  fre(|uent  visits  and  the  time  they  spent  in  the 
pursuit,  notwithstanding  their  settled  conviction  at  the  very 


344  Coffey's  Probate  Decisions,  Vol.  1. 

outset  that  she  was  crazy  and  could  not  competently  trans- 
act any  business  of  importance;  the  fortunate  circumstance 
of  Annie  Robinson  going  to  the  office  to  obtain  a  witness 
to  an  instrument ;  the  chance  meetings  on  the  streets  and 
on  boats;  the  remarkable  ability  to  discover  and  marshal  ser- 
vants of  years  gone  by  who  had  been  dismissed  from  em- 
ployment; many  of  these  discarded  domestics  are  brought 
in  to  testify  to  trivial  transactions,  inconsiderable  incidents 
and  segregated  circumstances,  designed  to  promote  the  pur- 
pose of  contestant  in  traducing  the  memory  of  deceased  and 
to  expose  her  infirmities  of  temper  and  magnify  her  foibles 
into  the  dimensions  of  disease  of  mind,  every  atom  of  acerb- 
ity on  her  part  and  every  ebullition  of  anger,  no  matter  how 
evanescent,  is  exaggerated  and  accentuated  as  evidence  of 
insanity. 

The  value  of  the  evidence  of  business  men  and  acquaint- 
ances acquired  in  commercial  dealings  has  been  favorably  re- 
garded by  the  courts  in  all  cases  of  this  character,  and  the 
persons  here  produced  by  proponents  are  certainly  entitled 
to  credit  within  the  sphere  of  their  observation.  A  brief 
resume  may  here  be  given  of  the  evidence  adduced  in  favor 
of  the  sanity  of  the  testatrix : 

Edwin  Lewis  Brown  was  an  accountant  and  bookkeeper 
for  the  decedent  for  some  years  after  1879.  Brown  used  to 
go  to  her  house  at  stated  periods  to  make  up  the  books.  She 
was  a  shrewd  and  suspicious  woman,  distrustful  to  a  degree. 
She  was  aggrieved  apparently  at  her  husband,  Mr.  Scott, 
and  spoke  of  her  suspicions  of  his  fidelity  to  her.  She  said 
she  married  him  because  she  loved  him  and  she  wanted  some 
one  to  handle  her  afl'airs,  and  Scott  was  reported  to  her  as 
a  business  man  and  was  introduced  as  such.  She  said  she 
did  not  think  he  reciprocated  her  affection,  and  she  sus- 
pected he  was  not  true  to  her,  as  he  was  no  husband  to  her 
and  she  knew  enough  about  men  to  know  that  this  was  be- 
cause he  was  going  with  other  women.  She  stated  on  mora 
than  one  occasion  that  Mr.  Scott  had  charged  her  with  be- 
ing crazy  or  said  that  she  was  crazy,  and  told  her  so  to  her 
face,  and  such  remarks  had  a  tendency  to  provoke  and  worrjr 
her ;  she  was  sane. 


Estate  of  Scott.  345 

George  Swall  knew  Mrs.  Scott  since  1885,  and  thought  she 
was  sane. 

Mrs.  Nellie  Swall  knew  decedent  all  her  own  life  and  be- 
lieved her  to  have  been  sane. 

Gustave  Messinger,  a  fire  insurance  agent,  knew  her  for 
twenty-three  years,  and  handled  her  insurance  about  three 
years  prior  to  her  death ;  saw  her  three  or  four  times  a  year, 
and  carried  about  $123,000  for  her.  She  always  selected 
her  own  companies,  giving  particular  personal  attention  to 
the  paying  of  premiums  and  the  exacting  of  receipts,  for 
she  would  not  trust  anyone  to  pay  the  premiums,  not  even 
this  witness,  and  in  his  opinion,  from  her  appearance  and 
manner  of  doing  business,  she  was  rational. 

Sumner  C.  Murray,  a  carpenter  and  builder  for  thirty 
years  in  San  Francisco,  knew  the  decedent  and  worked  for 
her  at  least  a  dozen  times  in  the  two  or  three  years  before  her 
death,  always  dealing  with  her  personally.  Her  conduct 
and  appearance  was  rational,  and  in  his  opinion  she  was  of 
sound  mind. 

"William  li.  Rhodes,  engaged  in  the  safe  deposit  depart- 
ment of  the  California  Safe  Deposit  and  Trust  Company, 
knew  decedent  as  a  customer  of  that  concern  for  two  years. 
Had  many  conversations  with  her  on  her  visits  to  that  place, 
sometimes  for  a  few  minutes  and  sometimes  for  as  much  as 
half  an  hour  at  a  time.  Saw  her  once  a  month  or  once  in 
two  months;  in  his  opinion  Mrs.  Scott  was  perfectly  sound 
in  mind. 

Mrs.  Olivette  M.  Folsom  testifies  that  she  has  been  mar- 
ried about  ten  years.  Her  mother  in  law  died  about  two 
years  ago  of  a  stomach  trouble.  She  had  sufi'ered  several 
years  prior  to  her  death.  The  senior  ]\Irs.  Folsom  came  to 
this  coast  on  the  same  steamer  with  Mrs.  Scott  and  the 
friendship  continued  until  death.  Each  had  this  similar 
chronic  complaint?  and  both  had  the  same  physician.  They 
used  to  compare  notes  as  to  their  symptoms.  After  the  sen- 
ior Mrs.  Folsom 's  death  Mrs.  Scott  used  to  visit  the  junior 
repeatedly,  which  visits  were  returned,  and  the  young  wo- 
man went  to  drive  on  a  number  of  occasions  with  the  elder 
one,  and  they  talked  habitually  of  the  symptoms  of  Mrs 
Folsom  ill   her  last  illness.     The  mother  in  law  of  witness 


346  Coffey's  Probate  Decisions,  Vol.  1. 

had  to  be  very  careful  in  her  diet  in  the  last  year  of  her  life. 
Witness  heard  from  them  that  her  mother  in  law  and  Mrs. 
Scott  came  out  to  California  together.  She  heard  Mrs. 
Scott  complaining  of  her  stomach  troubles;  the  two  talked 
before  her  on  the  subject  matter  of  their  abdominal  ailments. 
She  never  heard  Mrs.  Scott  accuse  anybody  of  attempting 
to  poison  her;  never  heard  her  use  profane,  vulgar,  or  ob- 
scene language  or  say  or  do  anything  unbeseeming  a-  lady. 
She  was  perfectly  sane.  Witness  gave  as  her  reasons  that 
she  always  conducted  herself  in  a  rational  manner  and  talked 
sensibly,  her  conversation  was  the  same  as  that  of  any  other 
sane  person.  In  all  these  conversations  there  was  no  sug- 
gestion made  by  Mrs.  Scott  that  she  had  been  poisoned,  that 
she  thought  her  trouble  arose  from  poison,  or  anything  what- 
ever about  poison. 

Robert  Frank  Clark,  in  the  insurance  line  for  twenty  years 
last  past  transacted  some  matters  for  and  with  decedent.  She 
did  business  the  same  as  anyone  else.  Clark  saw  her  at  her 
house,  talked  with  her  for  as  much  as  half  an  hour  at  a  time. 
The  conversation  occurred  in  a  little  room  off  the  hall,  ap- 
parently a  reception-room.  Decedent  may  have  talked  about 
her  properties  in  a  general  incidental  way.  She  alluded  to 
her  physical  infirmities,  giving  Clark  to  understand  that  she 
was  possessed  of  a  very  sensitive  stomach  and  was  of  the 
dyspeptic  order.  Witness  thought  she  was  very  suspicious 
in  business  matters,  a  nervous  woman.  She  never  told  Clark 
that  she  feared  being  poisoned.  He  never  saw  her  excited. 
She  was  emphatically  sane.  Clark  gave  as  reasons  for  his 
opinion  that  she  conducted  her  business  with  scrupulous  care 
in  regard  to  data  and  details,  very  exact  in  money  matters. 
She  never  talked  to  him  about  her  domestic  affairs.  The 
transactions  of  witness  with  her  were  from  November,  1886, 
to  November,  1893.  ■    . 

Amanda  Johnson  was  employed  by  Mrs.  Scott  for  nine 
months  in  1893.  Decedent  was  delicate,  just  sick.  She  did 
not  tell  witness  what  was  the  matter.  She  took  massage 
treatment  while  witness  was  there,  who  used  to  have  to  stay 
in  the  room  during  the  time.  While  the  rubbing  was  going 
on  decedent  would  have  some  covering  over  her.  Never 
heard  her  say  that  she  was  in   danger  of  being  poisoned. 


Estate  of  Scott.  347 

She  was  not  easy  to  get  along  with.  She  used  to  become 
angry  sometimes.  She  said  she  had  too  much  business  to 
attend  to ;  that  she  thought  Scott  did  not  care  for  her  be- 
cause she  was  too  old ;  that  he  drank  sometimes ;  that  they 
would  try  to  break  her  will  when  she  was  dead  by  trying 
to  prove  that  she  was  crazy,  that  Scott  would  try  and  do 
this.  Once  when  the  witness  was  with  her  passing  in  sight 
of  an  insane  asylum,  decedent  pointed  in  that  direction  and 
said  that  Ball  and  her  husband  had  picked  out  a  room  in 
that  institution  for  her.  In  the  opinion  of  the  witness  Mrs. 
Scott  was  sane. 

George  A.  Folsom  came  out  to  this  coast  on  the  steamer 
with  decedent,  1857,  and  afterward  the  acquaintance  con- 
tinued here.  He  saw  her  three  or  four  times  after  her  mar- 
riage to  Mr.  Scott  in  1889 ;  the  last  time  in  November,  1897. 
She  was  perfectly  sane. 

Joseph  Henry  Marshall,  a  resident  for  thirty  years  of  this 
city,  a  salesman  for  the  Dunham-Carrigan  Company,  deal- 
ers in  hardware,  knew  Mrs.  Scott  as  a  customer  of  that  firm 
years  ago.  Her  transactions  with  the  witness  were  purely 
on  business  and  continued  for  a  period  of  six  years.  The 
acquaintance  was  begun  in  the  store  where  witness  was  em- 
ployed. She  came  about  once  in  two  or  three  months,  per- 
haps about  thirty  times  in  all.  She  was  very  bright  in  mak- 
ing purchases,  in  looking  after  cash  discounts.  She  came 
about  once  in  three  months.  IMarshall  thought  she  was  per- 
fectly sound  in  mind  and  very  bright. 

James  S.  Bock,  floor  superintendent  of  Newman  &  Lev- 
inson,  on  Kearny  street,  for  twelve  years,  knew  decedent  as 
a  customer  since  before  she  married  Scott  and  had  many 
conversations  with  her  on  matters  connected  with  her  pur- 
chases. She  was  very  reserved  and  aristocratic  in  her  de- 
meanor and  mannerisms.  She  was  always  dressed  up  to 
date,  very  particular  as  to  appointments  of  apparel  and  a 
close  and  exact  buyer,  a  hard  customer  to  please,  with  an 
excellent  knowledge  of  fabrics  and  a  good  judgment  user  in 
the  selection  of  materials.  She  always  wanted  the  latest 
styles  and  she  was  a  good  judges  of  modes.  Had  no  con- 
versation with  her  except  in  the  line  of  his  calling.  She 
was  sane. 


348  Coffey's  Probate  Decisions,  Vol.  1. 

John  M.  Ver  Mehr  deposed  that  he  was  an  assistant  ac- 
countant at  the  California  Safe  Deposit  Company,  and  knew 
the  decedent  as  a  customer;  saw  her  many  times  but  had  no 
considerable  conversation  with  her,  but  so  far  as  he  could 
judge  Mrs.  Scott  was  perfectly  sane. 

John  J.  Doyle  knew  Mrs.  Scott  since  1888  and  had  busi- 
ness with  her  down  to  November,  1896.  Witness  has  been 
engaged  since  1881  in  selling  the  product  of  the  vineyard 
Las  Palmas,  which  is  by  the  road  three  miles  and  a  half 
from  the  Scott  ranch,  the  Pebbleside.  She  often  came  to 
his  office  in  the  Safe  Deposit  Building  to  consult  about  the 
price  of  wine  and  other  cognate  matters.  Had  no  conver- 
sations with  her  except  on  business.  She  impressed  him  as 
an  intelligent  and  shrewd  woman  of  business  and  had  a  good 
knowledge  of  the  market  generally.  She  was  thoroughly 
sane;  conversant  with  the  condition  of  the  market  and  con- 
nected in  her  discourse,  discussed  the  future  of  the  market 
and  reasoned  well  upon  the  probabilities  of  prices. 

Sarnuel  G.  Murphy,  president  First  National  Bank,  knew 
Mrs.  Scott  since  January,  1896,  and  she  was  sane  beyond 
any  question. 

Miss  Clara  L.  "Wilson  knew  Mrs.  Scott  twenty  years.  Had 
seen  her  often  in  (he  last  ten  or  twelve  years.  When'  she 
was  out  riding  in  this  city  she  frequently  stopped  at  the 
house  of  the  witness.  She  ased  to  talk  to  the  father  of 
witness,  Ezekiel  Wilson,  about  her  vineyard  and  some  prop- 
erty she  had  on  Point  Lobos  Avenue  and  some  horses.  Wit- 
ness last  saw  decedent  in  1897,  and  in  her  opinion  Mrs. 
Scott  was  perfectly  sane. 

Thomas  Brown,  cashier  of  the  Bank  of  California,  knew 
Mrs.  Scott  as  a  customer  of  that  institution  in  which  her  ac- 
count was  closed  prior  to  her  death.  She  was  sane.  His 
opinion  was  based  on  observation  of  her  in  transactions  with 
the  bank.  He  had  no  other  means  of  judging  of  her  mental 
condition. 

William  Plageman,  engaged  in  the  milling  business  in  this 
city,  knew  Mrs.  Scott,  and  had  conversations  with  her  on  mat- 
ters of  business.  In  his  opinion  she  was  sane,  and  the  wit- 
ness saw  nothing  in  her  action  or  talk  to  indicate  insanitv. 


Estate  op  Scott.  349 

Ezekiel  Wilson,  nearly  eighty-two  years  of  age,  and  a  resi- 
dent of  San  Francisco  for  forty-eight  years,  and  very  well 
known  during  all  that  time,  knew  the  decedent  intimately  for 
twenty-five  years.  Never  heard  her  swear  or  use  unseemly 
language.  She  was  always  a  lady.  She  talked  about  her 
health,  stomach  trouble,  dyspepsia,  had  to  use  care  in  her  diet. 
She  was  a  very  bright,  intelligent,  first-class  business  woman, 
rational  and  shrewd  in  her  ideas.  She  was  sane  and  he  never 
thought  otherwise.  Her  conversation  and  conduct  showed 
sanity. 

C.  A.  Armstrong,  already  alluded  to  elsewhere,  thought 
she  was  sane. 

As  to  the  habits  of  contestant  it  is  not  open  to  doubt  upon 
the  evidence  that  he  sometimes  took  a  drop  too  much.  In  his 
own  testimony  he  says  that  for  two  or  three  years  when  he 
was  selling  wine  and  associating  with  drinking  men  he  may 
have  drank  a  shade  too  much,  but  he  was  never  under  the  in- 
fluence of  liquor  to  an  inordinate  extent;  he  was  always  able 
to  take  care  of  himself,  and  did  not  need  aid  of  any  person 
to  assist  him  home  or  otherwise.  The  testimony  of  Berry, 
Coyle,  and  Kelly,  hackdrivers;  Wallace,  car  conductor,  and 
farmer  Ahlstedt,  is  hardly  overcome  by  this  general  denial 
of  contestant.  It  is  not  surprising  that  this  gentleman  at 
times  was  tempted  beyond  his  powers  of  resistance,  for  such 
a  dragon  as  he  makes  out  decedent  would  drive  a  regiment 
of  teetotalers  to  drink.  "The  man  had  a  shrew  for  a  wife 
and  there  could  be  no  quiet  in  the  house  with  her."  This 
phase  of  the  case  may  be  passed  without  further  remark. 

In  regard  to  the  evolution  of  these  testamentary  instru- 
ments we  must  consider  at  some  length  the  evidence  of  those 
immediately  concerned  in  and  about  the  act  of  execution. 

Philip  G.  Galpin  began  his  practice  in  San  Francisco  as 
early  as  1858,  and  has  been  identified  with  his  profession  iri 
tills  place  since  that  time,  and  for  more  than  twenty  years 
continuously  has  resided  in  this  city,  engaged  in  active  and 
extensive  legal  business.  Mrs.  Angelia  R.  Scott  came  to  his 
office  in  relation  to  the  drawing  of  the  document  dated  Octo- 
ber 22,  1897.  to  which  his  name  is  subscribed  as  a  witness  in 
association  with  J;icob  C.  Johnson  and  Edward  li.  Horton. 


350  Coffey's  Probate  Decisions,  Vol.  1. 

He  made  a  draft  from  the  instructions  given  to  him  by  her. 
She  gave  the  details  of  the  devises  and  legacies.  He  first 
made  her  acquaintance  after  she  married  Scott — to  the  best 
of  his  memory  a  short  time  before  the  making  of  the  will  in 
1891.  The  witness  identified  his  signature  on  the  instrument 
dated  October  22,  1897,  and  also  the  signatures  of  the  other 
subscribing  witnesses,  Jacob  C.  Johnson  and  Edward  H.  Hor- 
ton,  just  above  his  own,  and  stated  that  he  saw  the  testatrix 
write  her  name  in  their  presence.  At  that  time  the  decedent 
said  that  she  published  and  declared  it  for  her  last  will  and 
testament.  From  the  time  witness  first  knew  Mrs.  Scott  she 
came  occasionally  to  his  office,  during  the  last  few  years  a 
great  many  times.  He  prepared  the  paper  of  October  22d, 
at  her  direction. 

Mr.  Reuben  H.  Lloyd  was  also  consulted.  Mr.  Galpin 
never  had  any  conversation  with  Mrs.  Garcia  in  connection 
wdth  the  drafting  of  the  codicil.  Neither  she  nor  Mrs.  Ger- 
rish  was  ever  present  at  any  of  the  interviews.  Mrs.  Scott 
always  came  alone.  She  gave  the  data  and  information  ob- 
tained in  drawing  the  will.  At  first,  she  stated  generally 
what  she  wanted  to  do ;  then  when  it  came  down  to  a  divi- 
sion among  the  different  parties  in  interest,  she  made  a  list 
of  the  names  that  she  gave  to  witness  and  indicated  what 
fractional  interest  each  was  to  receive,  and  then  from  time 
to  time  she  would  keep  changing  these  interests,  substitut- 
ing different  fractions  opposite  different  names.  She  was 
engaged  in  this  way  for  two  or  three  weeks.  She  would  come 
to  his  office,  perhaps  twenty  times  in  all,  and  suggest  changes 
in  the  will.  The  witness  formed  the  opinion  she  was  sane, 
and  judged  so  from  her  manner  and  appearance  and  her 
conversation  and  mode  of  doing  business.  He  had  no  rea- 
son to  suspect  her  -sanity.  Witness  had  no  other  business 
with  decedent  for  some  short  space  prior  to  the  time  she 
commenced  talking  about  the  will.  She  began  to  consult 
him  on  that  subject  more  than  a  month  before  the  date  of 
the  execution  of  the  codicil,  October  22,  1897.  During  that 
period  that  was  the  only  transaction  between  them  as  attor- 
ney and  client.  She  said  she  desired  to  give  ]\Ir.  Scott  ex- 
pressly what  she  had  given  him  in  the  will  which  was  drawn 


Estate  of  Scott.  351 

by  the  witness  in  1891.  She  said  that  she  was  attached  to 
his  children  and  did  not  regard  them  as  responsible  for  his 
shortcomings;  that  she  was  inclined  to  give  them  something- 
which  she  had  not  done  by  the  former  will,  and  desired  Mr. 
Galpin  to  so  fix  that  Scott's  share  should  be  the  same  and 
that  the  amount  to  his  children  should  be  specified.  She 
also  said  she  was  very  apprehensive  that  the  codicil  would 
be  broken  and  desired  great  pains  taken.  She  desired  a  will 
so  drawn,  if  possible,  that  it  could  not  be  broken,  and  also 
she  wanted  great  care  taken  that  it  should  not  be  stolen,  which 
she  apprehended  might  happen.  Decedent  informed  the  wit- 
ness that  she  was  told  that  Mr.  Estee  and  Mr.  Ball  would  un- 
dertake to  break  this  will.  She  was  very  anxious  about  the 
safety  of  the  will  and  codicil  and  told  the  witness  that  she 
proposed  to  put  it  in  her  box  in  the  Safe  Deposit  Building, 
and  consulted  him  as  to  how  she  could  do  that  and  prevent 
some  person  obtaining  access  to  the  box  and  purloining  the 
paper  after  her  death.  The  codicil  was  drawn  in  duplicate, 
at  his  suggestion,  to  anticipate  its  possible  loss.  One  copy 
was  attached  to  the  original  will  of  1891  and  the  other  copy 
was  retained  by  him  for  a  while  and  kept  in  his  safe  and 
then  IMrs.  Scott  took  it  away.  She  was  a  very  suspicious 
woman.  She  said  she  would  put  that  will  where  she  thought 
it  would  be  safe.  She  did  not  disclose  the  place  where  she 
was  going  to  put  it.  Subsequently  it  was  returned  to  him 
and  is  now  in  his  possession.  The  witness  had  no  recollec- 
tion of  Mrs.  Scott's  saying  anything  about  community  or 
separate  property,  but  she  did  say  that  a  large  part  of  her 
property  was  derived  from  her  first  husband,  Salvin  P.  Col- 
lins, and  she  thought  that  it  was  but  right  that  she  should 
remember  his  relatives  in  the  will. 

Edward  H.  Horton  has  been  manager  of  the  house  of  J. 
C.  Johnson  &  Company  on  Market  street  for  about  fifteen 
years.  J.  C.  Johnson  has  been  dead  for  some  months.  The 
late  Mrs.  Angelia  R.  Scott  used  to  call  frequently  there  and 
the  house  had  transactions  with  her  in  selling  goods.  After 
the  death  of  Mr.  Collins  she  used  to  come  to  obtain  advice 
from  Mr.  Johnson  about  her  business  affairs,  and  in  the  last 
ten  vears  Mr.  Johnson  was  absent  a  good  deal  on  account  of 


352  Coffey's  Probate  Decisions,  Vol.  1. 

illness,  so  she  consulted  witness  many  times.  She  spoke  to 
him  about  the  will  and  she  told  him  that  Mr.  Scott  was  con- 
tinually nagging  her  about  making  a  will  and  that  sometimes 
Scott  made  her  sick  by  this  talk.  Horton  identified  the  sig- 
natures to  the  different  instruments.  One  was  that  of  his 
uncle,  Jacob  C.  Johnson,  and  the  other  his  own,  and  the  other 
that  of  Mrs.  Angelia  R.  Scott,  subscribed  to  the  instrument 
dated  September  7,  1891;  also  the  same  may  be  said  of  the 
paper  dated  February  25,  1892;  likewise  the  same  as  to  the 
third  paper  appended  dated  October  22,  1897,  to  which  a 
third  signature,  P.  G.  Galpin,  is  subscribed.  Decedent  de- 
clared the  first  to  be  her  will,  and  signed  it  and  asked  him- 
self and  Mr.  Johnson  to  be  witnesses  and  they  signed  in  her 
presence.  It  was  the  same  of  the  second  and  third  papers. 
Horton 's  recollection  is  that  one  will  was  executed  in  du- 
plicate, she  saying  that  if  one  were  lost  the  other  would  serve. 
Mrs.  Scott  told  witness  that  Scott  was  worrying  her  to  death 
about  her  will;  that  he  was  making  her  life  a  perfect  hell 
on  earth ;  that  he  said  he  could  smash  any  will  that  she  could 
make.  She  told  him  that  Mr.  Scott  was  always  at  her  and 
annoying  her  about  the  making  of  a  will  and  saying  to  her 
that  she  was  ' '  crazy  as  a  bedbug. ' '  Witness  advised  her  that 
she  might  have  that  settled  by  an  examination  by  competent 
physicians  and  this  was  done  afterward  at  the  time  of  the 
execution  of  the  third  paper,  October  22,  1897,  in  the  office 
of  Mr.  Galpin,  the  attorney.  After  the  examination  she 
came  into  the  room  where  the  witnesses  were  in  waiting  and 
said  that  she  was  all  right  and  that  she  was  sane,  and  those 
present  assented  to  that  proposition  with  the  remark  that  if 
she  were  not  sane  no  one  was.  The  witness  gave  it  as  his 
opinion  that  she  was  sane. 

We  come  now  to  an  important  item  of  evidence  in  this 
case :  The  examination  of  the  decedent  by  the  doctors,  which 
it  appears  was  the  result  of  suggestions  emanating  from  Mr. 
Horton  and  Dr.  Lane.  Counsel  for  contestant  comments  on 
the  singularity  of  this  circumstance,  and  thinks  its  unusual 
character  significant,  and  cites  a  case  in  Oregon  in  which  a 
similar  proceeding  was  regarded  as  an  unusual  precaution 
and  itself  importing  a  consciousness  of  the  existence  of  the 


Estate  of  Scott.  353 

very  fact  inquiry  into  which  it  was  intended  to  foreclose,  and 
that,  as  in  Twine's  case  in  Coke's  Reports,  it  was  like  a  clause 
in  a  deed  that  it  was  made  honestly,  truly,  and  bona  fide,  and 
would  lead  to  a  suspicion  against  the  integrity  of  the  instru- 
ment: Greenwood  v.  Cline,  7  Or.  28. 

As  against  these  dicta  and  in  connection  with  the  con- 
sideration of  expert  testimony  in  general,  reference  may  be 
made  to  the  opinion  of  Dr.  Clouston,  an  eminent  alienist,  in 
his  Clinical  Lectures  on  Mental  Diseases,  in  which  he  says, 
in  regard  to  will-making,  that  the  great  trouble  is  that  medi- 
cal men  are  usually  not  consulted  at  the  time  of  making  the 
will,  when  the  real  capacity  of  the  testator  could  be  exam- 
ined into,  but  are  placed  on  the  witness-stand  after  he  is 
dead,  with  one-sided  imperfect  information,  and  with  every 
motive  on  the  side  calling  the  experts  to  prevent  their  getting 
at  all  the  facts.  It  is  most  important,  says  Dr.  Clouston, 
that  a  skilled  and  experienced  physician  should  be  asked  to 
examine  into  the  testamentary  capacity  of  such  cases  before 
the  destination  of  great  sums  of  money  is  irrevocably  decided 
by  a  document  that  above  all  things  needs  soundness  of  judg- 
ment for  its  validity.  It  would  be  well  were  qualified  physi- 
cians oftener  called  for  this  purpose. 

In  the  Oregon  case  it  may  be  noted  that  the  will  was  not 
set  aside  upon  the  ground  of  insanity  but  upon  that  of  un- 
due influence,  and  in  the  case  at  bar  there  is  no  evidence  of 
undue  influence.  The  facts  as  to  the  certificate  in  this  case 
were  brought  out  first  by  the  cross-examination  of  Dr.  Will- 
iam Henry  Mays,  who  was  called  as  an  expert  by  contestant, 
and  whose  ability  is  admitted  and  experience  exceptional  in 
mental  diseases. 

Dr.  Mays  was  for  two  years  the  assistant  physician  for 
the  insane  asylum  at  Stockton  and  also  for  an  equal  period 
superintendent  of  that  in.stitution,  and  he  is  a  graduate  in 
medicine  of  the  University  of  California.  In  his  direct  ex- 
amination he  said  in  answer  to  the  hypothetical  questions  that 
he  considered  the  person  described  insane,  a.ssuming  hypothe- 
sis. About  all  the  constituents  of  insanity  were  present  in 
that  (luestion ;  fixed  delusions  as  to  various  fictitious  circum- 
stances, thought  by  the  person  to  be  facts  without  any  basis 

Prob.  Dec,  Vol.  T — 23 


354  Coffey's  Probate  Decisions,  Vol.  1. 

for  belief.  On  cross-examination  Dr.  Mays  said  he  knew  the 
late  Mrs.  Scott;  met  her  at  Mr.  Galpin's  office  on  the  occa- 
sion of  the  execution  of  the  codicil.  His  acquaintance  with 
this  case  began  in  this  way :  He  was  called  by  Mrs.  Scott  her- 
self to  testify  or  to  give  a  certificate  as  to  her  sanity  at  a 
particular  moment.  He  knew  Mrs.  Scott  prior  to  that  time. 
He  called  at  her  house  once  or  twice  before  at  her  request. 
On  the  first  occasion  he  had  a  conversation  with  her  for  three- 
quarters  of  an  hour  or  perhaps  a  full  hour  and  on  the  sec- 
ond occasion  for  perhaps  an  equal  space.  The  first  time  was 
about  a  week  before  the  meeting  at  the  lawyer's  office  and 
the  second  two  or  three  days  prior  to  that.  The  purpose  and 
object  of  these  conversations  was  on  her  part  to  acquaint  the 
witness  with  her  and  to  enable  him  to  form  a  judgment  of 
her  sanity.  She  did  not  tell  him  that  in  so  many  words,  but 
she  exhibited  her  books  and  accounts  and  went  over  them 
with  him  to  a  certain  extent  to  show  apparently  that  she  was 
a  bright  business  woman.  He  met  her  after  those  conversa- 
tions in  Mr.  Galpin's  office  in  conjunction  with  other  medi- 
cal gentlemen  for  the  purpose  of  testifying  to  her  mental 
condition  at  that  time  with  the  view  of  her  making  a  codicil. 
That  was  the  third  time  he  met  her.  The  date  is  in  the  codi- 
cil but  he  did  not  remember  the  date.  The  interview  on  that 
occasion  took  about  one  hour  and  a  half.  There  were  pres- 
ent Mr.  Galpin,  Dr.  Robertson  and  Dr.  Gardner,  of  Napa, 
himself,  and  INIrs.  Scott.  Mrs.  Scott  was  left  in  the  room 
with  the  witness  and  the  other  physicians  for  the  greater 
part  of  an  hour,  perhaps,  hardly  as  long  as  three  hours;  it 
may  have  been  two  hours.  The  three  physicians  were  there 
to  investigate  into  her  mental  condition  at  that  time  prior 
to  her  signing  a  codicil  to  her  will,  it  being  her  wish  that 
her  sanity  be  established  by  these  examining  physicians.  She 
announced  that  as  her  object,  saying  she  was  apprehensive 
of  the  will  being  attacked  after  her  death  on  the  ground  of 
her  insanity.  They  conversed  with  her  with  a  view  of  as- 
certaining her  mental  condition ;  talked  with  her  about  her 
husband  and  about  her  relations  with  him;  talked  about  a- 
Mrs.  Meily.  The  doctors  referred  to  all  these  matters ;  they 
made  as  thorough  an  examination  as  was  possible  then  and 


Estate  of  Scott.  355 

there  with  no  counter-evidence.  The  physicians  were  called 
by  Mrs.  Scott  and  after  the  examination  they  signed  a  cer- 
tificate of  the  result  in  answer  to  a  request  in  writing,  which 
request  and  certificate  are  as  follows : 

"To  Drs.  Gardner,  Robertson,  and  Mays: 

' '  Gentlemen :  Having  been  informed  that  the  husband  of 
Mrs.  Angelia  R.  Scott  proposes  to  break  any  Will  that  IMrs. 
Scott  may  make,  and  being  desirous  to  perpetuate  evidence 
as  to  her  mental  condition  at  the  time  of  executing  the  Codi- 
cil to  her  Will  this  22nd  day  of  October,  1897,  I  would  be 
pleased  to  know  what  her  mental  condition  is. 

"October  22nd,  1897. 

"THILIP  G.  GALPIN." 

"San  Francisco,  October  22nd,  1897. 
"In  compliance  with  the  above  request,  we  have  this  day 
carefully  examined  into  the  mental  condition  of  Mrs.  Angelia 
R.  Scott,  and  in  our  opinion  she  is  of  perfectly  sound  and  dis- 
posing mind. 

W.  H.  MAYS,  M.  D. 
J.  W.  ROBERTSON,  M.  D. 
"A.  M.  GARDNER,  M.  D." 

Another  paper  was  written  and  signed  by  the  witness  and 
delivered  to  Mrs.  Scott  through  the  mail  on  the  day  of  its 
date,  October  22,  1897,  and  reads  as  follows: 

"San  Francisco,  October  22nd,  1897. 
"I  have  this  day  in  compliance  and  in  company  with  Dr. 
Gardner  and  Dr.  Robertson,  at  the  office  of  Attorne}'  Gal- 
pin,  made  a  careful  examination  of  Mrs.  A.  R.  Scott,  with 
regard  to  her  mental  condition.  I  find  her  of  sound  mind 
and  in  full  possession  of  her  mental  faculties.  I  also  con- 
versed with  her  at  her  home.  I  also  conversed  with  her  at 
some  length  some  two  or  three  weeks  ago  at  her  residence 
with  the  «ame  end  in  view.  On  each  of  these  occasions  I 
made  a  special  endeavor  to  get  some  evidence  of  mental  im- 
pairment, but  without  success.  On  the  contrary,  she  im- 
pressed me  as  a  person  of  more  than  ordinary  mental  keen- 
ness and  unusual  power  of  memory." 


<  i 


356  Coffey's  Probate  Decisions,  Vol.  1. 

Another  paper  introduced  reads  as  follows : 

"1118  Sutter  Street,  San  Francisco,  October  22nd,  1897.— 
Mrs.  A.  R.  Scott  to  Dr.  Mays,  for  professional  services,  ex- 
amination, consultation,  and  certificate  of  mental  condition. 

"$100. 

"Paid,  W.  H.  Mays." 

Witness  said  that  that  was  his  bill,  signature,  and  receipt 
for  the  services  specified.  Dr.  Mays  thought  that  the  first 
conversation  he  had  about  her  mental  condition  after  her 
death  was  with  Mr.  Galpin  and  Dr.  Robertson.  He  told  Dr. 
Robertson  how  he  had  seen  Mrs.  Scott  after  making  that 
certificate  and  found  that  she  had  fooled  them,  and  that  she 
had  been  playing  a  part,  and  how  he  had  seen  her  since  and 
found  undoubted  evidence  of  insanity  of  the  most  atrocious 
character,  and  that  he  must  go  to  Mr.  Galpin  to  explain  mat- 
ters. He  went  to  Mr.  Galpin  and  told  him  that  he  had  seen 
Mrs.  Scott  since  and  found  her  undoubtedly  insane,  and  that 
would  very  much  modify  his  previous  statement  of  her  men- 
tal condition  made  October  22,  1897.  The  witness  did  not 
say  at  that  conversation  and  in  the  presence  of  Mr.  Galpin 
to  him  or  to  Dr.  Robertson,  or  at  any  time  before,  that  he 
had  a  talk  already  with  Mr.  Estee  on  the  subject.  Witness 
did  not  know  how  long  Mrs.  Scott  had  been  dead  at  the 
time  now  alluded  to.  It  was  some  little  time  after,  perhaps 
very  soon  after,  may  have  been  a  month  after  that  event. 
The  doctor  changed  his  mind  about  the  mental  condition  of 
the  lady  about  two  weeks  subsequent  to  the  giving  of  that 
certificate.  He  saw  her  two  weeks  after  that  and  found  her 
insane.  He  did  not  go  then  and  inform  Mr.  Galpin.  He 
first  told  him  some  little  time  after  she  died,  about  two  or 
three  weeks  after  that  event.  Witness  thought  she  died  De- 
cember 14,  1897.  He  talked  with  Dr.  Robertson  and  told 
him  how  he  had  found  undoubted  evidence  of  insanity,  and 
they  talked  the  matter  over  about  the  way  she  had  pla.ved 
her  part,  and  then  he  proposed  going  to  see  Mr.  Galpin,  say- 
ing to  Dr.  Robertson,  "We  must  not  leave  the  matter  in  this 
condition,"  and  they  went  down  there  and  witness  related 
the  circumstance  to  Mr.  Galpin.     The  witness  had  thought 


Estate  of  Scott.  357 

over  this  matter  a  good  deal;  had  been  in  consultation  with 
Dr.  Rucker,  Dr.  Hatch,  and  Mr.  Estee.  They  all  took  a  hand 
in  framing  the  hypothetical  question. 

Dr.  John  W.  Robertson  is  a  physician  and  surgeon,  gradu- 
ate of  the  University  of  California  medical  department,  pro- 
prietor of  the  sanitarium  at  Livermore,  and  formerly  con- 
nected with  the  public  hospitals  for  the  insane,  having  had 
large  and  diversified  experience  in  cases  of  insanity.  Knew 
the  late  Mrs.  Angelia  R.  Scott  and  at  her  request  made  an 
examination  of  her  sanity.  With  the  other  physicians,  they 
attempted  to  test  her  intellect,  her  memory,  her  ability  to 
make  a  will.  In  speaking  of  ]\Ir.  Scott  she  began  with  a  dis- 
cussion of  his  first  marriage — she  was  speaking  with  refer- 
ence to  her  own — she  said  that  Mr.  Scott  was  not  a  good 
business  man,  that  he  had  been  married  previously  and  had 
almost  ruined  the  fortune  that  he  had  gotten  of  his  first  wife ; 
that  he  had  charge  of  her  business  affairs  and  that  he  had 
managed  them  very  poorly;  that  it  was  only  the  untimely 
death  of  his  first  wife  that  saved  anything  at  all  to  his  chil- 
dren ;  that  when  she  herself  married  she  had  been  anxious 
to  place  her  business  affairs  in  the  hands  of  Mr.  Scott,  but 
she  soon  found  that  it  would  meet  the  fate  of  his  first  wife's 
fortune;  that  when  he  went  to  New  York  he  conducted  all 
the  business  affairs  in  his  own  way;  that  his  bank  account 
grew  very  large,  while  her  account  decreased ;  that  Mr.  Scott 
had  no  money  at  all  when  he  married  her;  that  he  had  then 
in  a  little  while  thereafter  several  thousand  dollars  in  bank; 
that  in  the  course  of  time  she  found  it  absolutely  necessary 
for  her  protection  that  she  take  her  business  affairs  away 
from  him ;  that  she  had  been  a  kind  mother  to  his  children, 
that  she  loved  them  and  desired  to  do  something  for  them, 
and  that,  therefore,  she  wanted  to  make  a  will,  a  codicil  to 
the  will  which  would  increase  their  share  of  the  estate;  she 
said  that  she  did  not  particularly  hate  Mr.  Scott,  she  disliked 
him  on  business  grounds;  that  he  had  been  unfaithful  to  her, 
that  he  had  been  unkind  to  her;  that  he  had  done  everything 
to  her  that  a  husband  should  not  do;  that  she  did  not  intend 
to  take  away  the  part  that  she  had  given  Mr.  Scott  and  that 
while  he  had  fallen  in  her  estimation  the  children  had  risen 


358  CoprEY's  Probate  Decisions,  Vol.  1. 

very  much;  she  spoke  of  her  relation  with  the  children,  of 
how  well  they  were  doing  in  the  University,  of  what  hope 
she  had  for  their  future ;  and  that  she  had  been  instrumental 
in  helping  them  along  and  desired  that  a  part  of  her  fortune 
should  go  to  them ;  she  again  spoke  of  her  sister  in  law,  Mrs. 
Paisley,  the  sister  of  her  deceased  first  hu>sband,  and  at  this 
time  the  witness   again  questioned  her  and  she  again  said 
she  did  not  believe  that  there  had  been  any  carnal  intercourse 
between  the  two,  but  she  felt  that  Mrs.  Paisley  had  undoubt- 
edly taken  Scott's  part  and  that  he  had  made  certain  over- 
tures to  that  lady  and  that  she  ought  to  have  resented  them 
more  strongly  than  she  had;  she  felt  that  they  were  nearer 
together  than  further  away  after  those  advances  and  over- 
tures; that  as  Mrs.  Paisley  stayed  along  in  the  house  she 
seemed  to  take  Scott's  part  rather  than  hers  and  on  that  ac- 
count Mrs.  Scott  made  her  go  back  home ;  and  she  did  not 
care  to  leave  any  of  her  property  to  her.     Mrs.  Scott  asked 
the  witness  if  there  was  any  insane  delusion  in  that.     He  an- 
swered that  he  could  discern  no  delusion  in  that  disposition. 
Then  the  Meily  question  came  up   again.     She  again  went 
fully  into  all  the  reasons  for  her  suspicions  there.     She  spoke 
of  the  thin  partition  and  of  the  fact  that  when  she  went  there 
she  heard  a  noise  of  creaking  of  the  bed — she  heard  it  squeak 
and  she  heard  voices  after  she  had  knocked  and  the  noise 
kept  up.     She  stood  there  awaiting  the  cessation  of  the  noise 
and  she  heard  a  man's  step  going  out  to  the  kitchen  and  down 
a  back  way  into  the  street.     A  little  while  later  the  door  was 
opened  and  she  went  in.     She  found  that  the  bedclothes  had 
been  rumpled;  she  believed  that  it  was  her  husband.     She 
asked  the  witness  if  this  was  an  insane  delusion  provided 
all  those  were  facts,  and  the  doctor  answered  that  all  she 
needed  for  a  basis  was  a  fair  suspicion.     She  claimed  that 
certain  persons  had  been  to  her  and  told  her  that  Scott  had 
visited  Mrs.  Meily  on  the  afternoon  in  question ;  and  she  ar- 
gued this  point  that  it  was  not  absolutely  essential  for  her 
to  have  seen  this  with  her  own  eyes  but  simply  to  have  such 
evidence  as  would  fairly  warrant  a  suspicion.     She  asked  the 
witness  if  there  was  any  such  evidence,  if  she  could  prove 
to  him  that  she  heard  those  noises  while  she  stood  there  and 


Estate  of  Scott.  359 

heard  a  man's  step  going  away,  and  it  was  also  shown  that 
her  husband  had  visited  Mrs.  Meily  that  afternoon,  would  he 
regard  it  as  an  insane  delusion"?  The  witness  answered, 
''Certainly  not,"  but  that  it  would  be  a  matter  for  legal  in- 
vestigation and  he  could  not  go  into  all  these  facts.  She 
spoke  with  reference  to  her  husband — she  felt,  she  said,  that 
in  place  of  taking  away  from  him  she  was  adding  to  his  share. 
The  three  points  asked  of  her  were  the  three  changes  made 
in  the  will:  1.  With  reference  to  Scott;  2.  Mrs.  Meily;  3. 
]Mrs.  Paisley.  The  physicians  went  over  the  point  as  to  Mrs. 
Paisley  time  and  again  for  the  three  hours  they  discussed 
the  matter,  and  the  witness  finally  came  to  the  conclusion 
that  no  amount  of  discussion  would  enlighten  him  further. 
So  he  concluded  to  write  another  letter  practically  the  same 
as  this.  In  that  other  letter  he  said  nothing  about  insane 
delusions.  The  witness  identified  a  letter  shown  to  him  as 
the  second  letter  dated  October  22,  1897,  entirely  written, 
dated  and  signed  by  his  hand;  it  must  have  been  written 
about  that  date;  it  was  written  on  the  night  he  got  home 
while  everything  was  fresh  in  his  memory;  that  is,  the  first 
letter  was  so  dated  and  written;  the  second  letter  was  writ- 
ten about  three  weeks  afterward,  and  was  a  copy  substan- 
tially of  the  first  with  certain  matter  eliminated,  to  which 
she  took  exception,  and  is  as  follows: 

"October  22nd,  1897. 
"Mrs.  Angelia  R.  Scott, 

"My  dear  Madam:  By  your  request,  I  have  made  a  thor- 
ough examination  of  your  mental  condition  with  reference 
to  your  capacity  for  drawing  or  altering  your  Will  and  signed 
a  paper  certifying  your  competency,  and  I  now  more  explic- 
itly state  my  reasons  for  so  doing.  I  have  carefully  read 
your  Will  made  several  years  ago,  and  thoroughly  investi- 
gated your  reasons  for  the  changes  made.  I  find  you  usu- 
ally intelligent,  rational  and  possessing  excellent  memory  and 
able  to  sustain  continuously  a  line  of  thought  and  saw  noth- 
ing either  in  demeanor,  method  of  expression,  or  mental  pe- 
culiarity to  in  any  way  suspect  mental  weakness.  I  judge 
you  to  be  a  most  remarkable  business  woman  and  unusually 
free  from  intuitively  conceived  rea.soning,  clear-headed,  broad- 


360  Coffey's  Probate  Decisions,  Vol.  1. 

minded,  and  just.     The  best  proof  of  which  I  judge  to  be 
the  Will  you  propose. 

"(Signed)     Respectfully, 

"J.  W.  ROBERTSON." 

The  doctor's  reasons  for  leaving  out  of  this  letter  the  por- 
tion she  objected  to  in  the  former  were:  After  the  first  in- 
terview the  only  suspicion  in  his  mind  was  the  possibility  of 
insane  jealousy,  but  that  was  only  a  possibility  and  a  matter 
that  he  could  not  determine.  After  these  conversations  he 
still  had  no  more  reasons  to  omit  what  he  did  omit  than  he 
had  at  the  first  letter.  He  did  so  simply  because  of  a  per- 
sonal request  and  because  of  the  fact  that  as  he  saw  more 
and  more  of  her  he  became  more  and  more  fully  convinced 
of  her  mental  soundness  and  naturally  did  not  care  to  put 
a  stigma  where  he  saw  no  valid  reason  for  so  doing.  He  be- 
came as  satisfied  as  he  could  possibly  be  of  her  soundness. 
He  had  no  mental  reservation  in  his  judgment  of  her  sanity. 
He  knew  nothing  of  Mrs.  Meily  or  whether  Mrs.  Scott  had 
made  those  visits,  but  the  statements  of  Mrs.  Scott  were  plaus- 
ibly put  and  well  thought  out,  and  whether  the  premises 
were  false  or  true  the  syllogism  was  perfect,  reasons  excel- 
lent and  explicit,  and  he  could  perceive  no  reason  for  a  base 
fabrication.  What  he  omitted  in  her  second  letter  was  simply 
a  matter  of  courtesy  to  her ;  but  he  reserved  his  letter,  placed 
it  on  file,  and  desired  to  use  it.  In  the  conversations  with 
her  she  said  that  Mr.  Scott  said  that  she  was  insane  and  that 
he  would  break  any  will  that  she  made.  She  was  for  that 
reason  very  anxious  for  the  medical  gentlemen  to  pass  on 
that  proposition.  She  exposed  her  mind  fully  to  them  and 
promised  to  answer  as  they  should  propound  to  her  without 
reserve,  evasion,  or  equivocation,  and  she  certainly  did  so 
and  gave  them  every  opportunity  of  determining  the  ques- 
tion presented.  After  a  full  and  thorough  examination  Dr. 
Robertson  came  to  a  positive  conclusion  that  at  the  time  he 
observed  her  she  was  sane.  He  did  not  suspect  even  mental 
weakness  in  her  case.  In  his  first  letter  there  occurs  this  ex- 
pression :  ' '  The  only  question  that  could  arise  was,  whether 
or  not  this  judgment  of  yours  was  based  on  a  delusion ;  as 
this  was  the  only  question  that  could  be  raised  as  to  your 


Estate  of  Scott.  361 

sanity."  That  was  omitted  from  the  second  letter  simply 
because  after  his  various  conversations  with  her  he  saw  no 
reason  to  entertain  the  slightest  suspicion  of  any  mental  weak- 
ness. Her  reasoning  was  logical,  her  statements  plausible 
and  possible.  Regarding  her  sister  in  law,  Mrs.  Paisley,  she 
^made  no  charges  whatever  of  immorality.  "With  regard  to 
^fMrs.  Meily  it  was  impossible  for  him  to  test  its  truth;  he  had 
to  accept  the  statements  of  Mrs.  Scott  as  bases  of  belief. 
She  argued  the  whole  matter  over  with  them.  In  regard  to 
the  hypothetical  questions  presented  by  the  respective  coun- 
sel, the  answer  is  always  based  upon  the  assumptions  of  the 
premises. 

Counsel  for  contestant  comments  upon  the  testimony  of 
Dr.  Robertson,  saying  that  so  far  from  contradicting  or  vary- 
ing from  the  revised  opinion  or  ultimate  judgment  of  Dr. 
Mays,  Robertson  agrees  with  it  in  every  essential  particular, 
and  if  he  had  seen  what  Dr.  Mays  saw  in  his  last  observa- 
tion or  visit  to  Mrs.  Scott,  he  would  not  have  subscribed  to 
her  sanity,  and  counsel  says  that  so  far  from  Dr.  Mays'  con- 
duct being  censurable,  it  is  highly  to  be  commended  as  the 
act  of  a  conscientious  and  dignified  gentleman  and  reputable 
physician,  for  when  he  found  that  he  had  been  deceived  by 
her  in  the  "most  atrocious"  manner  and  discovered  the  de- 
ception, he  did  his  duty  and  corrected  his  original  opinion 
and  gave  his  evidence  as  he  was  bound  in  honor  and  con- 
science to  do.  When  upon  that  visit  to  Mrs.  Scott's  house 
she  pointed  out  through  the  window  to  an  imaginary  object 
standing  outside  near  the  barndoor,  when  there  was  no  one 
there,  and  "the  whole  was  the  inveterate  phantom  of  a  mor- 
bid imagination,"  he  became  convinced  that  she  Avas  the  vic- 
tim of  an  insane  delusion :  Dew  v.  Clark,  3  Add.  79,  re- 
printed in  Eng.  Ecc.  Rep.  436. 

This  cited  case  is  entitled  to  attentive  perusal  for  its  bear- 
ing on  the  facts  here  adduced  in  evidence  on  the  issue  of  in- 
sane delusion ;  the  elaborate  treatment  of  the  topic  and  the 
minute  and  thorough  examination  of  the  phenomena  of  men- 
tal perversion  occurring  in  that  ease  with  the  reasoning  lead- 
ing to  the  conclusion  reached  by  Sir  John  Nicholl,  the  trial 
judge,  are  pertinent   and    instructive. 


362  Coffey's  Probate  Decisions,  Vol.  1. 

The  court  has  read  this  opinion  with  renewed  interest,  hav- 
ing previously  examined  it  with  care,  and  indorses  the  en- 
comium of  counsel  as  to  the  ability  with  which  the  author 
treated  the  issues  and  evidence. 

Counsel  for  contestant  says,  further,  that  the  examination 
in  Mr.  Galpin's  office  shows  a  lack  of  thoroughness.  It  was 
not  comprehensive  nor  profound — so  superficial  that  it  was 
easy  for  Mrs.  Scott  to  conceal  the  point  upon  which  she  was 
really  daft.  She  carefully  avoided  allowing  them  to  ap- 
proach some  of  her  most  salient  symptoms  of  insanity.  This 
is  one  of  the  features  of  persons  possessed  of  delusions,  to 
throw  the  searcher  off  the  scent;  but  when  the  insane  per- 
son is  off  guard,  the  delusion  is  detected.  This  is  how  Dr. 
Mays  came  to  change  his  opinion,  and  his  reason  for  believ- 
ing that  he  had  been  deceived  by  this  designing  woman  in 
the  first  instance  is  satisfactory;  but  when  he  saw  the  clear 
manifestation  of  her  mania  as  she  pointed  out  the  window 
of  her  residence  and  professed  to  see  persons  on  the  outside 
when  no  one  was  in  the  direction  indicated,  he  became  con- 
vinced that  he  was  dealing  with  a  person  whose  mind  was 
infected  by  an  insane  delusion.  Counsel  contends  that  Dr. 
Mays  was  right  in  his  final  opinion,  but  erred  egregiously 
in  his  certified  conclusion,  although  he  accounts  satisfactorily 
for  the  cause  of  the  original  error,  and  he  acted  in  a  pro- 
fessional manner  in  seeking  on  the  stand  to  correct  the  mis- 
take into  which  he  had  been  led  by  the  cunning  character- 
istic of  this  species  of  insanity. 

While  the  court  does  not  choose  to  adopt  the  severe  stric- 
tures applied  by  proponents  to  the  conduct  of  Dr.  Mays,  as 
there  is  no  necessity  of  ascribing  his  alteration  of  attitude 
to  a  corrupt  motive,  yet  it  cannot  acquiesce  in  the  views  of 
counsel  for  contestant,  so  speciously  presented,  that  there 
was  a  lack  of  thoroughness  in  the  examination  of  the  dece- 
dent in  Mr.  Galpin's  office  and  that  it  was  neither  compre- 
hensive nor  profound.  Dr.  Mays  himself  testifies  that  the 
examination  was  thorough  and  occupied  hours,  and  his  tes- 
timony throughout  shows,  including  the  certificate  and  his 
own  letter,  that  his  first  judgment  was  better  based  than  his 
second,   founded  as  the  latter  was  upon  a   casual  incident 


Estate  of  Scott.  363 

scarcely  sufficient  to  operate  so  extensive  an  inference.  The 
inadequacy  of  his  grounds  for  modifying  his  judgment,  as 
compared  with  the  predicate  of  his  first  opinion,  seems  to 
the  court  plain,  taken  in  connection  with  his  delay  in  com- 
municating his  change  of  conviction  until  after  the  death  of 
testatrix.  As  the  court  reads  the  record  there  is  no  satis- 
factory explanation  for  not  divulging  his  discovery  before 
the  death  of  Mrs.  Scott. 

The  testimony  of  Dr.  Robertson  is  certainly  strong  and 
clear  and  without  any  vein  of  vacillation  or  symptom  of  par- 
tisan bias,  and  he  came  to  a  positive  conclusion,  as  he  himself 
says,  ' '  after  a  full  and  thorough  examination, ' '  that  she  was 
sane,  in  the  fullest  sense  of  that  word,  and  he  adhered  to 
this  opinion  after  a  most  searching  cross-examination.  Dr. 
Robertson  is  a  friend  of  Dr.  Mays  and  a  weekly  visitor  to  the 
latter 's  office  in  this  city,  which  seems  to  be  his  local  head- 
quarters and  the  place  where  he  received  word  to  call  and 
see  Mrs.  Scott,  and  whence  he  went,  with  the  result  that  she 
took  him  to  task  for  the  form  of  his  letter  which  he  recast, 
leaving  out  the  portion  to  w^hich  she  took  exception  herein- 
before quoted.  Notwithstanding  this  intimacy  of  relation 
and  closeness  of  communication  between  these  two  doctors. 
Dr.  Robertson  has  never  altered  his  certified  conviction  in 
favor  of  the  sanity  of  testatrix,  and,  on  the  whole,  the  court 
considers  his  conclusion  correct. 

It  appears,  as  a  reason  for  the  omission  to  call  the  third 
signer  of  the  certificate,  Dr.  Gardner,  that  he  was  absent 
from  the  city  at  the  time  of  the  trial  when  his  presence  was 
sought. 

As  to  the  utility  of  an  inquisition  into  the  testamentary 
capacity  of  a  person  prior  to  decease,  undoubtedl.v  an  impres- 
sion exists  that  it  is  a  wise  precaution,  and  in  this  case  it  has 
proved  useful  as  tending  to  establish  the  fact  that  decedent 
was  certainly  not  a  victim  of  an  insane  delusion  with  respect 
to  the  designs  of  her  husband,  who  has  verified  her  appre- 
hensions in  his  attempt  to  set  aside  this  will.  That  there  is 
an  impression  current  that  such  an  ante-mortem  examination 
would  be  a  salutary  provision  of  the  law  has  been  shown  in 
a  bill  introduced  in  the  logisbituro  of  this  state  to  admit  wills 


364  Coffey's  Peobate  Decisions,  Vol.  1, 

to  probate  prior  to  the  death  of  testator,  which  measure,  how- 
ever good  in  principle,  was  impracticable  in  details  and  was 
not  passed:  Assembly  Bill,  No.  199,  introduced  in  Januar3% 
1895. 

The  will  may  be  considered  in  proof  of  its  own  validity 
and  of  the  sanity  of  its  maker.  A  careful  reading  of  the 
entire  instrument  will  justify  the  opinion  rendered  by  Dr. 
Eobertson  that  it  was  the  product  of  a  clear-headed  person, 
and  that  the  best  proof  of  her  clearness  of  mind  is  in  the 
instrument  itself.  She  may  have  been  mistaken  in  her  prem- 
ises and  violent  in  her  prejudices,  but  strong,  violent  and 
unjust  prejudices  do  not  show  mental  incapacity:  Trumbull 
V.  Gibbons,  22  N.  J.  L.  117. 

Her  antipathy  to  Scott  was  not  deep-seated,  and  w^as  by 
her  rationally  explained.  If  she  were  the  victim  of  an  in- 
sane delusion  in  1897  she  would  have  taken  away  the  part 
that  she  had  given  him  in  1891 ;  but  so  far  from  doing  that 
she  really  added  to  it,  as  she  herself  said,  because  although 
he  had  abated  in  her  affection,  her  regard  for  the  children 
had  risen.  So  far  as  the  will  of  November  7,  1891,  is  con- 
cerned it  can  hardly  be  pretended  that  there  is  sufficient  evi- 
dence to  prove  that  at  that  time  testatrix  was  not  competent. 
The  only  witnesses  who  testified  that  in  their  opinion  she  was 
insane  in  1891,  were  Hammond,  Mortier,  Perkins,  Dyer,  Uhl- 
horn  and  Mrs.  O'Connor.  It  cannot  be  claimed  that  the  tes- 
timony of  the  experts  was  in  any  manner  applicable  to  the 
original  will  which  was  executed  in  that  year.  The  court 
has  already  commented  sufficiently  upon  the  testimony  of  the 
witnesses  named.  By  that  will  testatrix  makes  legacies  of 
a  few  thousand  dollars  and  the  residuary  interest  in  the  es- 
tate. She  gives  thirty-three  two-hundredths  or  about  one- 
sixth  to  relatives  of  her  former  husband,  Mr.  Collins,  and  the 
remaining  one  hundred  and  sixty-seven  two-hundredths  to 
her  relatives,  less  two-fiftieths  to  Mr.  Scott. 

By  the  second  will  she  gives  twelve-fiftieths  or  about  one- 
fourth  to  relatives  of  Collins  and  of  the  remaining  thirty- 
eight-fiftieths  she  gives  thirty-three-fiftieths  to  her  own  kin, 
and  to  Scott  the  same  as  in  the  first  will  and  to  his  sons 
and  daughter  one-fiftieth   and  one-fiftieth  to   charity.     The 


Estate  of  Scott.  365 

extraordinary  care  to  do  what  was  right  all  around  and  the 
soundness  of  her  reasons  for  discriminations  are  shown  in 
the  evidence  of  Mr.  Galpin,  whose  office  she  visited  a  score 
of  times  and  who  visited  her  house  several  times  for  consulta- 
tion, until  he  was  quite  worn  with  the  work  of  arranging  the 
iata  and  information  which  she  gave  and  in  readjusting  the 
particulars  until  she  was  finally  satisfied  with  the  disposi- 
tion. Her  idea  of  equity  was  exhibited  in  remembering  the 
relatives  of  her  deceased  husband.  The  power  and  tenacity 
of  her  memory  were  manifested  in  carrying  all  the  various 
intricacies  and  details  in  her  mind.  Her  understanding  of 
her  relation  to  objects  of  bounty  and  the  natural  and  moral 
rights  of  others  was  shown  by  the  evidence  of  Dr.  Lane  in 
regard  to  what  she  said  about  charities  when  he  besought  her 
out  of  her  abundance  to  give  to  some  benevolent  institution 
and  she  replied  that  she  had  enough  of  poor  relations  for 
that  purpose,  and  bestowed  her  benefactions  accordingly. 
Her  reasons  for  curtailing  the  expectancy  of  Scott  have  been 
dealt  with  sufficiently.  Scott  was  not  the  natural  object  of 
her  bounty,  yet  she  did  not  discard  him  nor  make  any  change 
in  her  two  wills  to  his  disadvantage,  but,  on  the  contrary, 
rather  increased  his  proportion  by  the  share  she  gave  to  his 
children,  and  in  this  regard  it  is  a  circumstance  tending  to 
show  that  she  was  not  as  black  as  she  has  been  painted — that 
one  of  the  reasons  for  changing  her  testament  proceeded  from 
her  kindness  of  heart  toward  these  children,  and  that  while 
the  boys  were  inmates  of  her  household,  which  was  from  the 
moment  of  their  father's  marriage  to  her,  they  had  met  with 
affectionate  treatment  at  her  hands.  The  amount  paid  for 
board  is  a  comparative  bagatelle.  The  books  show  that  not- 
withstanding that  the  two  boys  made  their  home  at  this  house, 
and  that  Scott  had  an  allowance  of  $2,400  per  annum  from 
the  estate  of  his  wife  to  support  them,  that  in  1891  he  paid 
on  account  of  board,  $25.  In  1892  and  1893  he  paid  noth- 
ing. In  1894,  he  paid  $339.  In  1895,  he  paid  $200,— mak- 
'  ing  a  total  of  $564  paid  into  this  house  for  the  board  of 
these  two  boys  for  a  period  of  six  years,  a  little  less  than 
$78  per  year,  these  boys  having  in  their  own  right,  as  they 


\i66  Coffey  ^s  Probate  Decisions,  Vol.  1. 

testified,  from  fifty  to  seventy-five  thousand  dollars,  which 
they  received  from  their  mother  and  from  some  relatives. 

If  she  were  a  mean  woman,  a  miser,  or  a  heartless  step- 
mother, she  would  not  have  allowed  the  children  to  remain  in 
such  circumstances,  and  if  she  was  so  base  as  is  said,  the 
father  and  guardian  disregarded  his  duty  in  allowing  the 
children  to  stay  in  an  establishment  which  one  of  his  wit- 
nesses testified  she  thought  on  the  first  day  she  went  there 
was  a  fast  house. 

Testatrix  was  not  forgetful  of  Mr.  Scott 's  children  although 
they  had  an  ample  fortune  of  their  own,  and  notwithstand- 
ing the  alleged  delusions,  and  all  the  reasons  that  would  have 
prompted  to  cut  ofi'  Mr.  Scott,  she  accords  him  substantial 
recognition. 

If  there  were  causes  sufficient  to  have  induced  a  sane 
woman  to  ignore  him  in  her  will  or  reduce  what  otherwise 
would  have  been  a  just  allowance,  the  fact  that  she  enter- 
tained an  unjust  or  an  unfounded  suspicion,  in  regard  to 
his  treatment  of  her,  or  unjust  prejudice  against  him,  would 
not  affect  the  will  nor  demonstrate  that  she  was  necessarily 
of  unsound  mind :  Clapp  v.  Fullerton,  34  N.  Y.  196,  197,  90 
Am.  Dec.  681 ;  Coit  v.  Patchen,  77  N.  Y.  537,  538. 

The  tests  of  testamentary  capacity  are :  1.  Understanding 
of  what  testatrix  is  doing;  2.  How  she  is  doing  it;  3.  Knowl- 
edge of  her  property;  4.  How  she  wishes  to  dispose  of  it; 
5.  Who  are  entitled  to  her  bounty :  Clark  v.  Ellis,  9  Or.  147. 
Applying  these  tests  to  the  facts  of  this  case  there  can  be 
no  doubt  of  the  result. 

In  Daniel  v.  Daniel,  39  Pa.  191.  it  is  said  that  testamentary 
capacity  implies  that  the  testator  fully  understands  what  he 
is  doing,  and  how  he  is  doing  it ;  he  must  know  his  property 
and  how  he  wishes  to  dispose  of  it  among  those  entitled  to 
his  bounty.  If  he  understands  in  detail  what  he  is  doing, 
and  chooses  with  understanding  and  reason  between  one  dis- 
position and  another,  it  is  sufficient. 

In  Home  v.  Home,  9  Ired.  99,  with  reference  to  the  amount 
of  testamentary  capacity  necessary,  it  is  said  it  is  sufficient 
if  the  testator  knew  what  he  was  doing,  and  to  whom  he  was 
giving  his  property;  and  in  1  Redfield  on  Wills,  125,  127,  it 


Estate  op  Scott.  367 

is  said  that  this  is  about  as  accurate  and  brief  a  definition 
as  can  be  given. 

In  Kinne  v.  Kinne,  9  Conn.  104,  21  Am.  Dec.  732,  the  court 
say:  "Had  he  an  understanding  of  the  nature  of  the  busi- 
ness he  was  engaged  in,  a  recollection  of  the  property  he 
meant  to  dispose  of,  and  of  the  persons  to  whom  he  meant 
to*  convey  it,  and  of  the  manner  he  meant  to  distribute  it  be- 
tween them?" 

In  Stevens  v.  Vancleava,  4  Wash.  C.  C.  262,  Fed.  Cas.  No. 
13,412,  Washington,  J.,  said:  "To  sum  up  the  whole  in  the 
most  simple  and  intelligent  form,  were  his  mind  and  memory 
sufficiently  sound  to  enable  him  to  know  and  to  understand 
the  business  in  which  he  was  engaged  at  the  time  he  executed 
the  will?" 

The  point  of  time,  then,  to  be  considered  at  which  the 
capacity  of  the  testatrix  is  to  be  tested,  is  the  time  when 
the  will  was  executed.  This  is  the  important  epoch.  Judge 
Washington  saj^s:  "The  evidence  of  the  attesting  witnesses 
and  next  to  them,  of  those  who  were  present  at  the  execution, 
all  other  things  being  equal,  are  most  to  be  relied  upon." 

In  this  case  the  attesting  witnesses  were  present  at  the 
execution,  and  the  two  who  survive  have  testified  to  the 
soundness  of  her  mind  at  that  time.  The  evidence  of  the 
attorney  who  drew  the  will  according  to  her  instructions, 
and  who  was  a  witness  to  the  last  codicil,  and  the  positive 
and  uncontradicted  testimony  of  the  subscribing  witness 
to  all  the  instruments,  of  the  soundness  of  the  testator's  mind 
at  the  time  the  will  was  executed,  in  addition  to  the  other 
witnesses  whose  evidence  has  been  examined  and  reviewed, 
establish  beyond  doubt  that  the  testatrix  was  rational,  and 
did  know  and  understand  what  she  was  doing  at  that  time. 
As  was  said  in  the  ease  of  Lee's  Heirs  v.  Lee's  Executors, 
supra.  "There  was  so  much  delil)eration  and  thought  in  all 
this,  that  even  if  the  testatrix  had  been  before  afflicted  with 
habitual  insanity,  yet  this  conduct  was  sufficient  to  establish 
a  complete  intermission." 

The  prayer  of  the  contestant's  petition  is  denied  and  judg- 
ment ordered  for  proponents. 


368  Coffey's  Probate  Decisions,  Vol.  1. 

The  Principal  Case  has  been  before  the  appellate  courts  in  12-4 
Cal.  671,  57  Pac.  654;  128  Cal.  57,  60  Pac.  527j  1  Cal.  App.  740,  83 
Pac.  85;  77  Pac.  446. 


Estate  of  ANGELIA  R.   SCOTT,  Deceased. 

[No.    19,473;    decided   Jan.    14,    1903.] 

Wills — Implied  Revocation  by  Codicil. — When  a  new  will  is  made 
in  the  form  of  a  codicil,  it  does  not  require  an  express  revocation  to 
make  the  intent  to  revoke  the  prior  will  clear;  it  is  sufficient  that 
the  intent  to  make  a  disposition  of  the  estate  in  the  new  instrument, 
which  is  inconsistent  with  the  prior  gifts,  is  made  as  clear  as  the 
original. 

Wills — Meaning  of  "Residue"  or  "Residuum." — Residue  or  resi- 
duum, technically,  is  the  remainder  or  that  which  remains  after  tak- 
ing away- a  part;  in  a  will,  such  portion  of  the  estate  as  is  left  af- 
ter paying  the  charges,  debts,  devises,  and  legacies;  and  the  pre- 
sumption is  that  the  testatrix  used  it  in  that  sense,  unless  a  contrary 
intention  clearly  appears. 

Wills — Meaning  of  Residue,  How  Determined. — Where  a  will  is 
drawn  for  a  testatrix  by  an  attorney,  the  word  "residue,"  as  used 
in  the  instrument,  will  be  taken  technically,  and  no  resort  can  be 
had  to  artificial  aid  in  its  interpretation  when  natural  reason  and 
the  circumstances  of  its  insertion  make  clear  its  meaning. 

Wills — Revocation  by  Codicil  Which  Omits  Legatee. — In  this  case 
the  codicil  of  the  testatrix,  which  in  effect  was  a  new  will,  omitted 
one  of  the  residuary  legatees  named  in  the  original  will.  The  court 
found  that  the  codicil  was  inconsistent  and  irreconcilable  with,  and 
worked  the  revocation  of,  the  original  will  in  respect  to  this  be- 
quest, and  therefore  denied  the  right  of  the  legatee  to  participate  in 
the  distribution  of  the  residuum. 

Application  for  partial  distribution  by  Eugene  Wormell. 

L.  Seidenberg  and  R.  P.  Clement,  for  applicant. 

Galpin  and  Bolton,  Houghton  &  Houghton,  contra. 

COFFEY,  J.  Whether  or  not  Eugene  Wormell  is  entitled 
to  relief  in  this  proceeding  is  dependent  upon  the  discovery 
of  the  intent  of  the  testatrix  as  expressed  in  her  will  and 
codicils  or  deduced  therefrom  by  process  of  construction  as 
matter  of  law. 

To  understand  the  question  the  instruments  should  be 
presented  in  full,  and  they  are  as  follows: 


Estate  of  Scott.  369 

' '  In  the  Name  of  God,  Amen.  I,  Angelia  R.  Scott,  of  the 
City  and  County  of  San  Francisco,  State  of  California,  being 
of  sound  and  disposing  mind  and  memory,  do  make,  publish 
and  declare  this  my  last  will  and  testament. 

"I.  I  give,  devise  and  bequeath  to  the  officers  of  Apollo 
Lodge  of  the  Independent  Order  of  Odd  Fellows  in  the  City 
and  County  of  San  Francisco,  and  by  their  successors  in  office, 
the  sum  of  Two  Thousand  (2,000)  Dollars,  to  be  by  them 
invested  and  the  proceeds  thereof  to  be  used  in  the  preserva- 
tion and  care  of  the  cemetery  lots  in  the  Odd  Fellows  Ceme- 
tery in  the  City  and  County  of  San  Francisco,  in  which  my 
late  husband,  Salvin  P.  Collins,  and  my  nephew,  John 
Quincy  Wormell,  are  buried. 

"II.  I  give,  devise,  and  bequeath  to  Horatio  Stebbins  the 
sum  of  Three  Thousand  (3,000)  Dollars,  to  be  used  by  him  at 
his  discretion  to  advance  the  interests  of  the  First  Unitarian 
Church  in  this  City  and  County. 

"III.  I  give,  devise,  and  bequeath  to  Carl  Anderson,  my 
coachman,  who  has  served  me  faithfully  for  five  years.  Five 
Hundred    (500)    Dollars. 

"IV.     I  give,  devise,  and  bequeath  my  diamond    earrings, 
one  bar  pin  with  one  diamond,  my  finger  ring  set  with  three 
large  diamonds,  my  chain  and  charms  to  my  niece,  Helen 
Garish,  and  my  watch  to  my  niece.  Ella  Perkins. 

"V.  I  give,  devise,  and  bequeath  my  cluster  diamond 
ring  and  one  small  solitaire  diamond  ring,  the  gift  of  my 
late  husband,  S.  P.  Collins,  to  his  sister,  Mrs.  Rachel  Johonnot. 

"VI.  I  give,  devise  and  bequeath  one  diamond  solitaire 
finger  ring  to  Mrs.  Frank  Garcia,  wife  of  my  nephew,  Frank 
Garcia. 

"VII.  I  give,  devise  and  bequeath  all  the  rest  and  residue 
of  my  property  as  follows :  One  fiftieth  thereof  to  each  of  the 
following  persons,  children  of  my  late  brother,  Amos  P.  Wor- 
mell, namely:  One  fiftieth  to  Andrew  Wormell  of  Dover, 
New  Hampshire;  one-fiftieth  to  Charles  Wormell,  of  Sun- 
bury,  Ohio;  one-fiftieth  to  William  Wormell  of  the  same 
place;  one-fiftieth  to  Eugene  Wormell  of  Livermore,  Maine; 
one-fiftieth  to  Lettie  Wormell  of  Colorado,  and  one- 
fiftieth    to    Salvin    Ulysses    Wormell    of    Phillips,    IMaine; 

Prob.  Dec,  Vol.  1—24 


370  Coffey's  Probate  Decisions,  Vol.  1. 

two-fiftieths  thereof  to  Louisa  E.  Roe,  daughter  of  my  late 
brother,  Amos  P.  Wormell,  of  Island  Pond,  Vermont;  six- 
fiftieths  thereof  to  my  sister  Mary  A.  Cowan  and  her 
daughter  Amanda  Meily,  share  and  share  alike;  six-fiftieths 
thereof  to  M.  S.  Chamberlain,  nephew  of  my  late  husband, 
S.  P.  Collins,  now  residing  at  Concord,  New  Hampshire ;  one- 
fiftieth  thereof  to  Mrs.  Rachel  Johonnot,  sister  of  my  late 
husband,  residing  at  Montpelier,  Vermont ;  one-fiftieth  thereof 
to  Florence  Swall,  wife  of  George  Swall  of  Mountain  View, 
California,  niece  of  S.  P.  Collins,  deceased;  one-fiftieth 
thereof  to  Eugene  Wormell,  son  of  my  brother,  Nathaniel 
Wormell,  now  residing  at  Seattle,  Washington;  one-eighth 
to  my  nephew,  Frank  Garcia ;  one-eighth  to  my  niece  Helen 
Gerrish,  wife  of  Charles  Gerrish  of  Port  Townsend.  Wash- 
ington ;  one-eighth  thereof  to  Mrs.  Ella  Perkins,  of  Santa 
Clara  County,  California,  wife  of  Caleb  F.  Perkins;  one- 
tenth  thereof  to  Mrs.  Louisa  Garcia,  my  sister;  and  one- 
fortieth  thereof  to  Chester  and  Nellie  Swall,  son  and 
daughter  of  George  and  Florence  Swall  of  Mountain  View, 
California,  share  and  share  alike,  two-fiftieths  thereof  to  my 
husband,    E.    W.    Scott. 

"In  case  any  of  my  legatees  contest  the  probate  of  this 
will,  I,  hereby  revoke  the  legacy  of  such  contestant,  and 
direct  that  such  legacy  become  a  part  of  my  estate. 

"VIII.  I  nominate  and  appoint  Charles  S.  Tilton,  Caleb 
P.  Perkins,  and  Frank  Garcia,  Jr.,  as  executors  of  this  my 
last  Will  and  Testament  without  bonds. 

"In  Testimony  Whereof,  I  have  made,  published  and  de- 
clared the  foregoing  as  my  last  Will  and  Testament. 

"ANGELIA  R.  SCOTT,   (Seal.) 

"Signed,  sealed,  published  and  declared  to  be  her  last 
Will  and  Testament  by  the  aforesaid  Angelia  R.  Scott,  in 
our  presence,  who  in  her  presence  and  in  the  presence  of  each 
of  us,  and  at  her  request  have  hereto  set  our  hands  and 
seals,  as  witnesses  this  seventh  day  of  November,  A.  D.  1891. 

"JACOB  C.  JOHNSON,  1519  Van  Ness  Ave. 

"EDWARD   H.   HORTON,   30  Post   Street. 

"Whereas,  I,  Angelia  R.  Scott,  by  my  will  subscribed  on 
the  7th  day  of  November,  1891,  appointed  Caleb  F.  Perkins 


Estate  op  Scott.  371 

together  with  Charles  S.  Tilton  and  Frank  Garcia,  Jr.,  to  be 
executors  of  my  last  AVill  and  Testament. 

"Now,  then,  I  hereby  revoke  the  nomination  and  appoint- 
ment of  said  Perkins  as  one  of  my  said  executors,  and  it  is 
my  desire  that  this  Codicil  be  annexed  to  and  made  a  part 
of  my  last  Will  and  Testament  as  aforesaid  to  all  intents 
and  purposes.  ANGELIA  R.  SCOTT'. 

"Signed,  sealed,  published  and  declared  to  be  and  as  and 
for  a  codicil  to  her  last  Will  and  Testament  by  Angelia  R. 
Scott,  in  our  presence,  who  in  her  presence,  and  in  the 
presence  of  each  of  us  and  at  her  request  have  hereto  set  our 
hands  and  seals  as  witnesses  this  25th  day  of  February,  A.  D. 
1892.  "jr.  C.  JOHNSON, 

"E.  H.  HORTON. 

"Whereas,  I,  Angelia  R.  Scott,  of  the  City  and  County  of 
San  Francisco,  have  made  my  last  Will  and  Testament  in 
writing,  bearing  date  the  seventh  day  of  November,  in  the 
year  of  our  Lord,  one  thousand,  eight  hundred  and  ninety- 
one,  in  and  by  which  I  give  and  bequeath  to  my  sister,  Mary 
A.  Cowan  and  her  daughter,  Amanda  Meily,  six-fiftieths  of 
the  residue  of  my  estate  (after  providing  for  certain  legacies) 
xo  be  divided  share  and  share  alike  between  them,  and  whereas, 
since  then  said  Mary  A.  Cowan  has  died,  and  I  desire  to  re- 
voke so  much  of  said  Will  as  devises  six-fiftieths  to  her  and 
to  her  daughter  Amanda  Meily. 

"And  Whereas,  by  the  same  instrument,  I  have  devised 
one-fiftieth  of  said  residue  to  Florence  Swall,  wife  of  George 
Swall  of  Mountain  View,  and  since  that  time  said  Florence 
has  died,  leaving  three  children;  and  whereas  I  also  devised 
to  Eugene  Wormell,  son  of  my  brother,  Nathaniel  Wormell, 
residing  at  Seattle,  Washington,  one-fiftieth  part  of  said 
residue,  and  since  then  he  has  died;  and  whereas,  I  also 
desire  to  change  the  devise  to  Frank  Garcia,  of  one-eighth  of 
my  estate,  and  to  decrease  the  amount  thereof  and  whereas, 
I  did  devise  one-eighth  of  my  said  estate  to  Helen  Garish, 
wife  of  Charles  Garish;  and  I  desire  to  increase  the  amount 
devised  to  her;  and  whereas,  I  did  devise  one-eighth  of  the 
residue  of  my  said  estate  to  my  niece  Ella  Perkins,  I  now 
desire  to  devise  something  to  her  four  children ;  and  whereas,  I 


372  Coffey's  Probate  Decisions,  Vol.  1. 

now  desire  to  make  a  bequest  to  the  Old  People 's  Home  of  San 
Francisco,  and  to  the  three  children  of  my  present  husband,  E. 
W.  Scott;  and  whereas,  I  desire  to  revoke  the  gift  of  two 
thousand  dollars  to  the  Apollo  Lodge  of  the  Independent  Or- 
der of  Odd  Fellows,  and  desiring  to  preserve  the  general  fea- 
tures of  my  former  will  making  new  distributions  when  neces- 
sary by  deaths  which  have  happened  since  the  making  of  that 
will,  I  prefer  to  do  this  by  way  of  another  codicil  to  my  former 
Will  instead  of  executing  a  new  Will;  but  in  any  respect  in 
which  this  codicil  shall  conflict  with  the  provisions  of  my 
former  Will,  I  fully  intend  that  this  codicil  shall  control  the 
provisions  of  the  former  Will,  and  that  otherwise  the  former 
Will  and  the  codicil  thereof  shall  stand  unaffected  by  it. 

"I  revoke  the  bequest  I  made  in  my  said  Will  of  Two 
Thousand  Dollars  to  the  Apollo  Lodge  of  the  Independent 
Order  of  Odd  Fellows,  and  I  give,  devise  and  bequeath  Two 
Thousand  Dollars  to  the  Apollo  Lodge  of  the  Independent 
Order  of  Odd  Fellows  in  the  City  and  County  of  San  Fran- 
cisco, and  I  request  them  to  take  care  of  my  cemetery  lot  in 
the  Odd  Fellows  Cemetery  in  this  City  and  County  of  San 
Francisco. 

"I  give,  devise  and  bequeath  the  sum  of  One  Dollar  to  each 
of  the  following  persons:  To  Mrs.  Amanda  Meily,  daughter 
of  Mary  A.  Cowan;  to  Mrs.  Nellie  Swall,  wife  of  George 
Swall;  to  Mrs.  Eliza  Paisley,  wife  of  Donald  Paisley,  sister 
of  my  late  husband. 

' '  I  give,  devise  and  bequeath  to  my  maid,  Estella  Burnham, 
Five  Hundred  Dollars,  if  she  is  in 'my  employment  down  to 
the  time  of  my  decease. 

"I  give,  devise  and  bequeath  my  emerald  finger  ring  set 
with  diamonds,  and  also  my  large  solitaire  diamond  finger 
ring  to   Mrs.   Helen   Garish. 

"I  give,  devise  and  bequeath  all  the  rest  and  residue  of 
my  estate  subject  to  all  unrevoked  legacies  and  bequests  of 
my  Will,  and  subject  to  those  herein  contained  as  follows : 

"Of  such  residue,  two-fiftieths  thereof  to  my  nephew, 
Andrew  Wormell    of  Dover,  New  Hampshire. 

"Two-fiftieths  thereof  to  Charles  Wormell,  of  Sunbury, 
Ohio. 


Estate  of  Scott.  373 

"Two-fiftieths  thereof  to  my  nephew,  William  Wormell  of 
the  same  place. 

"Two-fiftieths  thereof  to  my  nephew,  Salvin  Ulysses  Wor- 
mell, of  Phillips,  Maine. 

"Three-fiftieths  thereof  to  my  niece,  Louisa  E.  Roe,  of 
Island  Pond,  Vermont,  daughter  of  my  brother,  Amos  P. 
Wormell. 

"One-fiftieth    thereof    to    Lulu    Wormell,    of    Oakland, 
daughter  of  my  nephew  Eugene  Wormell,  now  deceased. 

"Six-fiftieths  thereof  to  Mortimer  S.  Chamberlain,  resid- 
ing at  Concord,  New  Hampshire,  nephew  of  my  late  husband, 
S.  P.  Collins. 

"Three-fiftieths  thereof  to  Mrs.  Rachel  Johonnet,  sister  of 
my  late  husband,  S.  P.  Collins. 

"Three-fiftieths  thereof  to  Ella  Perkins,  of  Santa  Clara 
County,  wife  of  C.  P.  Perkins. 

' '  Three-fiftieths  thereof  to  be  divided  share  and  share  alike 
between  the  four  children  of  said  Ella  Perkins,  or  the  sur- 
vivors of  them  at  my  decease. 

"Seven-fiftieths  thereof  to  Helen  Garish,  my  niece,  wife 
of  Charles  Garish  of  Port  Townsend,  Washington. 

"Four-fiftieths  thereof  to  my  sister,  Mrs.  Louisa  Garcia, 
wife  of  Frank  Garcia  (senior). 

"Three-fiftieths  thereof  to  be  divided  share  and  share  alike 
between  the  children,  now  living  or  the  survivor  of  them,  at 
my  death,  of  Florence  Swall,  and  George  Swall,  of  Mountain 
View,  California ;  said  Florence  Swall  being  a  niece  of  my  late 
husband,  S.  P.  Collins. 

"  Four-fif tieiths  thereof  to  Frank  Garcia,  Jr.,  son  of  Frank 
Garcia. 

"Two-fiftieths  thereof  to  my  husband,  E.  W.  Scott. 

"One-fiftieth  thereof  to  Lloyd  N.  Scott,  for  himself,  for 
his  brother,  Wesley  B.  Scott,  and  his  sister,  Laura  May  Scott, 
share  and  share  alike;  })ut  he  is  to  receive  and  hold  in  trust 
the  shares  of  Wesley  R.  Scott  and  Laura  B.  Scott,  invest 
the  same,  and  use  the  income  or  principal,  if  necessary,  for 
their  education  and  support  until  both  beneficiaries  shall  die 
or  become  of  age;  and  in  case  of  the  death  of  either  beneficiary 
the  share  of  such  decedent  shall  be  divided  equally  between 


374  Coffey's  Probate  Decisions,  Vol.  1. 

the  survivors,  unless  decedent  leaves  issue  him  or  her  surviv- 
ing, and  in  that  event  the  share  of  said  decedent  shall  go  to 
said  issue. 

"One-fiftieth  thereof  to  the  Old  People's  Home  of  San 
Francisco. 

"One-fiftieth  thereof  to  the  San  Francisco  Protestant 
Orphan  Asylum. 

"And  in  case  any  of  my  devisees  or  legatees  shall  contest 
the  probate  of  this  Will  the  bequest  or  devise  to  them  is 
hereby  revoked,  and  the  amount  bequeathed  or  devised  to  such 
contestant  shall  go  back  and  become  a  part  of  my  estate,  and 
be  divided  pro  rata  among  the  residuary  devisees. 

"I  also  nominate  and  appoint  Charles  Garish  to  be  another 
executor  of  my  estate. 

' '  I  also  revoke  the  bequest  of  my  one  large  solitaire  diamond 
finger  ring  to  Mrs.  Frank  Garcia,  formerly  wife  of,  Frank 
Garcia,  Jr.,  and  I  give,  devise  and  bequeath  the  same  to  Helen 
Garish. 

"(Seal)     ANGELIA  R.  SCOTT. 

"Signed,  sealed  and  published  and  declared  to  be  and  as 
and  for  a  codicil  to  her  last  Will  and  Testament  by  Angelia 
R.  Scott  in  our  presence,  who  in  her  presence  and  in  the 
presence  of  each  of  us  and  at  her  request,  have  hereto  set 
our  hands  and  seals  as  witnesses  this  22d  day  of  October,  A. 
D.  1897. 

"JACOB  C.  JOHNSON,  1519  Van  Ness  Ave. 

"EDWARD  H.  HORTON,  2110  Devisadero  St. 

"PHILIP  G.  GALPIN,  1738  Broadway." 

The  general  scheme  of  testatrix  in  the  will  was  preserved 
in  the  codicil,  which  declares  that  she  desired  to  preserve 
the  general  features  of  her  former  will,  making  new  distri- 
butions made  necessary  by  deaths  occurring  since  its  execu- 
tion ;  that  she  preferred  to  do  this  by  way  of  another  codicil 
of  her  former  will  instead  of  executing  a  new  will,  but  in  any 
respect  in  which  the  last  executed  document  should  conflict 
with  the  first  she  declared  her  intent  that  the  codicil  should 
control,  but  otherwise  the  former  should  stand  unaffected. 

Now  the  question  is.  Are  the  provisions  of  this  codicil 
which  omit  any  allusion  to  Eugene  Wormell  consistent  with 


Estate  of  Scott.  375 

the  claim  upon  his  part  that  she  did  not  design  to  revoke 
her  bequest  to  him?  This  codicil  is,  in  effect,  a  new  will. 
Testatrix  declared  that  for  reasons  she  preferred  to  make 
a  new  will  in  the  form  of  a  codicil,  and  we  should  construe 
it  in  that  view. 

The  general  features  of  the  old  instrument  are  preserved, 
but  the  dispositions  are  somew^hat  varied. 

In  each  case  she  divided  the  residuum  into  fractions,  but 
in  the  original  will  the  parts  were  not  symmetrically  segre- 
gated, while  in  the  codicil  they  were  divided  into  fiftieths 
This  plan  is  perfectly  plain,  and  by  keeping  it  in  mind  any 
difficulty  in  divining  her  design  will  disappear.  It  does  not 
require  an  express  revocation  to  make  the  intent  to  revoke 
clear;  it  is  sufficient  that  the  intent  to  make  a  disposition  of 
the  estate  in  the  new  instrument  which  is  inconsistent  with 
the  prior  gifts  is  made  as  clear  as  the  original. 

Counsel  for  petitioners  quote  the  decision  in  Re  Ladd,  94 
Cal.  674,  that  a  codicil  is  never  construed  to  disturb  the  dis- 
positions of  the  will  further  than  is  absolutely  necessary  to 
give  effect  to  the  codicil,  and  that  a  clear  disposition  made 
by  the  will  is  not  revoked  by  a  doubtful  expression  or  in- 
eonsistent  disposition  in  a  codicil,  and,  taking  this  expression 
of  the  court  in  connection  with  section  1321  of  the  Civil 
Code,  counsel  deduces  this  truth. 

In  order  to  revoke  a  clear  disposition  in  a  will,  the  codicil 
must  contain  a  provision  that  is  not  simply  inconsistent,  but 
one  that  is  absolutely  irreconcilable,  with  the  disposition  in 
the  will. 

Such  a  condition,  counsel  contend,  is  not  presented  by  the 
case  at  bar,  for  the  dispositions  are  not  even  inconsistent 
let  alone  irreconcilable. 

Is  it  evident,  as  counsel  contend,  even  upon  the  most 
casual  consideration,  that  in  this  case  there  is  no  absolute 
necessity,  nor  any  necessity,  to  disturb  the  bequest  in  the 
will  to  petitioner,  in  order  to  give  effect  to  the  codicil,  and 
that,  therefore,  it  must  stand? 

If  this  were  as  patent  to  the  court  as  to  the  counsel,  there 
would  be  no  hesitancy  in  determining  the  issue  in  their 
favor,  but  that  there  is  some  lingering  doubt  in  the  mind 
of  counsel  as  to  the  validity  of  their  position  is  suggested 


376  Coffey's  Probate  Decisions,  Vol.  1. 

by  their  appeal  to  equity  in  one  of  their  earlier  briefs,  in 
which  they  claim  that  there  is  no  difficulty  in  carrying  out 
the  provisions  of  the  will  and  codicil,  for  it  is  only  necessary 
to  ascertain  the  value  of  the  estate  after  the  payment  of 
debts,  expenses  of  administration  and  providing  for  the  un- 
revoked general  and  specific  bequest  of  the  will,  then  deduct 
two-fiftieths,  one  for  the  petitioner  and  the  other  for  the 
children  of  Lettie  Wormell  Byron,  and  the  remainder  con- 
stitutes the  residue  disposed  of  by  the  codicil  and  makes 
the  petitioner  substantially  a  general  legatee  under  the  will 
of  an  amount  equaling  one-fiftieth  of  the  estate  after  the 
payment  of  debts,  expenses  of  administration,  and  the  pay- 
ment of  the  other  unrevoked  general  and  specific  legacies 
under  the  will,  there  being  no  reason  why,  in  this  manner, 
the  petitioner  may  not  receive  the  share  given  in  the  original 
will ;  ' '  but  if  this  cannot  be  done,  it  is  certainly  within  the 
equitable  powers  of  the  court  to  let  the  petitioner  in  to  share 
equitably  in  the  residue  under  the  codicil,  it  being  clear  that 
it  was  the  intention  of  the  testatrix  not  to  annul  or  impair 
the  legacy  given  in  the  will."  All  the  grounds  urged  for 
Eugene  Wormell  apply  with  equal  force  to  the  Byron  chil- 
dren. This  court  has  no  equitable  power  in  the  premises, 
and  it  is  not  clear  that  the  omission  of  this  Eugene  Wormell 
and  the  children  of  Lettie  Wormell  Byron  was  an  oversight 
of  testatrix. 

There  is  no  room  for  the  suggestion  of  an  alternative.  It  is- 
no  case  of  equity.  It  is  a  matter  for  interpretation  and  con- 
struction ;  it  is  for  the  court  to  find  out  the  sense  in  which 
the  testatrix  employed  certain  words ;  that  is,  the  idea  which 
she  intended  to  convey  by  the  use  of  certain  expressions  or 
terms,  and  to  draw  from  the  whole  text  a  conclusion  which 
shall  construe  the  intent  of  the  maker  of  the  instrument. 
The  object  is  not  to  make  or  mar  or  modify  the  testament, 
but  to  discover  its  sense;  hence,  the  whole  document  is  to 
be  construed  integrally.  There  is  no  case  here  for  extrinsic 
evidence;  and,  consequently,  the  intimation  of  oversight 
must  be  resolved  without  recourse  to  that  species  of  proof. 

In  their  final  brief  counsel  for  Eugene  Wormell  repeat 
their  suggestion  of  an  alternative,  but  rely  upon  their 
primary  proposition  that  petitioner  has  a  clear  right  to  the- 


Estate  of  Scott.  377 

legacy  in  the  will,  and  that  in  her  readjustment  of  the  be- 
quests in  the  codicil  his  name  was  omitted  through  over- 
sight. 

Counsel  do  not  persist  in  the  contention  that  there  may  be 
two  residues,  one  for  one  purpose  and  another  for  another, 
but  insist  that  they  have  consistently  adhered  to  the  position 
that  there  is  only  one  residue  to  deal  with ;  but  they  assert 
that  the  language  of  the  codicil  shows  clearly  that  the  tes- 
tatrix used  the  word  "residue"  without  understanding  its 
exact  meaning;  that  evidently  the  testatrix,  in  using  this 
term  in  the  codicil,  had  in  mind  not  a  residue  in  its  technical, 
legal  sense,  but  simply  the  remainder  of  her  estate  after  the 
payment  of  debts  and  expenses  of  administration. 

Residue  or  residuum,  technically,  is  the  remainder  or  that 
M'hich  remains  after  taking  away  a  part ;  in  a  will,  such  por- 
tion of  the  estate  as  is  left  after  paying  the  charges,  debts, 
devises,  and  legacies,  and  the  presumption  is  that  the  tes- 
tatrix used  it  in  this  sense,  and  a  contrary  intention  must 
clearly  appear. 

Considering  the  circumstances  in  which  the  codicil  came 
into  existence,  it  is  hardly  just  to  impute  ignorance  of  the 
meaning  of  the  word  or  lack  of  understanding  of  its  legal 
import  to  testatrix.  It  was  drawn,  according  to  the  record 
in  the  contest,  by  one  of  the  counsel  for  respondent  here 
(Mr.  Galpin)  from  the  instruction  given  to  him  by  her;  she 
gave  the  details  of  the  devises  and  legacies,  and  he  prepared 
the  paper  at  her  direction.  If  it  were  an  instrument  written 
by  herself  without  legal  assistance,  there  might  be  some  rea- 
son in  which  to  intimate  her  ignorance  of  the  technical 
term,  but  that  may  not  be  done  with  impunity  where  there 
was  a  skilled  draughtsman  and  expert  lawyer. 

The  word  "residue,"  therefore,  is  to  be  taken  technically, 
and  no  resort  can  be  had  to  artificial  aid  in  its  interpreta- 
tion when  natural  reason  and  the  circumstances  of  its  in- 
sertion make  clear  its  meaning. 

Counsel  for  Eugene  Wormell  argued  that  the  purpose  of 
testatrix  clearly  was  to  have  paid  out  of  that  remainder 
all  unrevoked  legacies  and  bequests  of  her  will  and  general 
legacies  and  bequests  of  the  codicil,  to  which,  in  terms,  the 
so-called  "residue"  in  the  mind  of  the  testatrix  was  made 


378  Coffey's  Probate  Decisions,  Vol.  1. 

subject;  then  to  have  two-fiftieths  of  the  remainder  paid  to 
Eugene  Wormell  and  Lettie  Wormell  Byron,  and  then  to 
dispose  of  the  remainder,  which  would  constitute  the  real 
residue,  in  fiftieths;  and,  counsel  continue  in  this  strain, 
that  if  all  of  this  estate  were  reduced  to  cash,  and  all  debts 
and  expenses  of  administration  paid,  it  would  be  in  exact 
conformity  with  the  codicil  to  pay,  out  of  what  remained, 
the  unrevoked  legacies  and  bequests  of  the  will,  and  the 
general  and  specific  legacies  of  the  codicil,  then  to  pay  two- 
fiftieths  of  what  remained,  one  to  the  petitioner  and  one  to 
the  children  of  Lettie  Wormell  Byron,  and  to  distribute  the 
remainder,  which  would  constitute  the  actual  residue  of  the 
codicil,  in  fiftieths ;  and  counsel  confess  their  entire  inability 
to  see  how  this  simple  course  of  carrying  out  what  strikes 
them  as  the  unmistakable  intention  and  purpose  of  the  tes- 
tatrix would  make  two  residues,  which,  it  appears  to  be  ad- 
mitted, are  repugnant  to  the  law,  if  possible  to  mathematics. 

This  simple  device  would  also,  it  is  said,  eliminate  the 
need  of  the  assumption  of  any  equitable  authority  by  the 
court,  as  such  division  would  be  plainly  in  pursuance  of 
the  plan  adopted  by  the  testatrix. 

If  it  were  the  intent  of  the  testatrix  to  cut  Wormell  off 
from  her  bounty,  would  she  not  have  done  the  same  with 
his  interest  as  she  did  with  some  others,  and  expressly  revoke 
her  bequest  to  him,  is  the  query  of  counsel,  to  which  they 
return  response  that  undoubtedly  she  would  have  so  done, 
if  that  had  been  her  deliberate  design;  but  it  will  be  asked 
in  turn.  Why  did  she  not,  then,  carry  him  into  the  codicil? 
To  this  self-propounded  interrogatory,  counsel  answer,  that 
he  may  have  been  omitted  from  the  codicil  by  oversight. 

If  mention  were  unnecessary,  omission  should  be  harmless, 
and  conjecture  useless. 

Counsel  aver  their  belief  that  it  may  have  been  the  in- 
tention of  testatrix  to  carry  him  into  the  codicil  and  to  thus 
make  him  a  sharer  in  her  bounty  in  equal  proportion  with 
the  other  residuary  legatees.  If  such  were  her  intention, 
she  never  executed  it,  and  how  can  he  benefit  by  her  failure 
to  execute  such  fancied  purpose?  But  is  her  omission, 
caused  by  an  oversight,  to  be  construed  as  an  intention  to 
deprive  him  entirely  from  sharing  in  her  bounty?     Or,  con- 


Estate  of  Scott.  379 

tiniie  counsel,  it  may  have  been  her  actual  intention  to  give 
Eugene  Wormell  and  Lettie  Wormell  Byron  two-fiftieths  of 
the  residue,  and  to  divide  the  remaining  forty-eight — fiftieths 
among  the  residuary  legatees  of  the  codicil;  but  all  this  is 
indulging  the  imagination  to  no  practical  benefit,  for,  as 
counsel  finally  admit,  in  any  event  we  must  take  her  will 
as  she  made  it  and  not  as  we  fancy  she  might,  could,  would, 
or  should  have  made  it. 

All  of  these  speculations  are,  in  a  manner,  interesting  and 
some  of  them  abstruse,  but  to  this  complexion  do  we  come 
at  last :  Was  there  any  intent  at  the  time  of  making  the 
codicil  in  the  mind  of  the  testatrix  that  Eugene  Wormell 
should  receive  any  part  of  the  residue  of  her  estate? 

To  resolve  this  problem  we  must  resort  to  the  will  and 
codicils  and  confine  ourselves  to  their  terms. 

By  the  former  w411  one-fiftieth  of  the  residue  was  be- 
queathed to  Eugene  Wormell  of  Livermore,  Maine,  and  an- 
other fiftieth  to  Eugene  Wormell  of  Seattle,  Washington; 
by  the  latter  every  fiftieth  is  given  to  some  person  other 
than  Eugene  Wormell  of  Livermore,  Maine,  and  in  regard 
to  the  other  Eugene,  it  is  explained  that  he  died  in  the  in- 
terval between  the  dates  of  the  two  transactions.  No  men- 
tion is  made  in  the  codicil  of  Eugene  Wormell  of  Livermore, 
Maine,  nor  of  Lettie  Wormell,  of  Colorado,  who  had  died  on 
the  6th  of  October,  1892,  five  years  prior  to  the  date  of  the 
latter  instrument.  An  inspection  of  the  two  papers  shows 
that  in  preparing  the  codicil  the  order  of  the  will  was 
closely  pursued;  the  variations  serve  to  indicate  an  ad- 
herence to  the  text  of  the  original;  and  in  going  down  the 
line  she  passed  over  the  names  of  "Eugene  Wormell  of 
Livermore,  Maine,  and  Lettie  Wormell  of  Colorado,"  to 
whom  she  had  given  each  one-fiftieth  of  the  will,  in  nominal 
juxtaposition,  and  the  necessary  inference  is  that  this  de- 
parture from  the  sequence  of  names  was  designed  and  that 
she  meant  to  omit  them  from  her  bounty. 

It  is  manifest  that  the  distribution  of  the  codicil  was 
intended  to  be  a  new  one  and  a  substitute  for  the  old,  while 
retaining  the  general  form  of  the  original,  but  the  division 
was  different  in  fractions,  names  of  donees,  and  amounts 
allotted  to  each  and  the  quantity  of  residue  distributed. 


380  Coffey's  Probate  Decisions,  Vol.  1. 

The  intent  to  make  a  disposition  of  the  residue  in  fiftieths 
is  clear  to  the  court,  and  such  an  intent  is  inconsistent  with 
the  prior  bequests  made  in  the  will  to  those  whose  names 
were  not  found  in  the  codicil.  The  court  has  no  authority 
to  divide  the  residue  under  the  codicil  into  fifty-two  parts, 
and  assign  one  part  to  Eugene  Wormell  and  one  part  to 
the  children  of  Lettie  Wormell  Byron,  for  to  do  this  would 
be  to  alter  the  disposition  of  testatrix  and  make  for  her  a 
new  will,  which  is  beyond  judicial  power. 

The  claim  of  petitioner  is  inconsistent,  in  my  judgment, 
with  the  plan  of  the  testatrix,  as  outlined  in  the  codicil,  and 
no  reasonable  construction  can  reconcile  the  two  propositions 
where  the  repugnance  is  so  evident,  and  she  herself  has  said 
that  in  any  respect  in  which  this  codicil  should  conflict  with 
the  provisions  of  her  former  will,  she  fully  intended  that 
the  codicil  should  control,  and  this  court  is,  finally,  of  opin- 
ion that  it  is  executing  her  intention  in  letter  and  spirit  by 
denying  the  prayer  of  petitioner,  and  it  is  so  ordered. 


The  Principal  Case  was  affirmed  by  the  supreme  court  in  141  Cal. 
485,  75  Pac.  44.  The  general  rule  is,  that  a  codicil  does  not  disturb 
the  will,  except  so  far  as  inconsistent  with  it  or  in  terms  or  by 
necessary  intendment  revokes  it:  Estate  of  McCauley,  138  Cal.  432, 
71  Pac.  512. 


Estate  of  THOS.  J.  HILL,  Deceased, 

[No.  4,382;  decided  February  27,  1886.] 

Will — Undue  Influence. — The  Evidence  in  this  contest  of  a  will, 
examined  and  held  insufficient  to  establish  a  charge  of  undue  in- 
fluence. 

Will — Inebriety  of  Testator. — The  Evidence  in  this  will  contest 
examined  and  held  not  to  sustain  a  charge  that  the  testator  was 
so  addicted  to.  the  excessive  use  of  intoxicants  as  to  deprive  him  of 
testamentary  capacity. 

Will — Unsoundness  of  Mind. — The  Evidence  in  this  will  contest 
held  insufficient  to  establish  a  charge  of  unsoundness  of  mind  on  the 
part  of  the  testator. 

Will — Insane  Delusion. — A  Belief  based  on  evidence,  however  slight, 
is   not   delusion. 


Estate  of  Hill.  381 

Will. — The  Fact  that  a  Guardian  has  been  Appointed  for  a  person 
because  of  his  incompetency  to  manage  his  affairs  is  not  conclusive  of 
his  incapacity  to  make  a  will. 

The  Words  "Insane"  and  "Incompetent"  defined  and  distin- 
guished. 

Contest  of  will. 

Giles  H.  Gray,  for  proponent,  J.  ]\I.  Haven. 

John  R.  Glascock,  for  contestant,  Jno.  AVoolley. 

H.  L.  Adams,  also  for  contestant. 

COFFEY,  J.  On  the  second  day  of  July,  1885,  James 
M.  Haven,  through  his  attorney,  Giles  H.  Gray,  Esq.,  filed 
in  this  court  a  petition  setting  forth  that  one  Thomas  J.  Hill 
died  on  or  about  the  twenty-fourth  day  of  June,  1885,  in 
this  city  and  county,  of  which  he  was  then  a  resident,  leav- 
ing estate  therein  consisting  of  personal  property  of  the 
probable  value  of  $5,000  cash;  that  said  Hill  left  a  will, 
dated  March  22,  1884,  in  possession  of  the  petitioner,  nam- 
ing him,  the  said  petitioner,  executor,  and  Wm.  H.  Aiken, 
Thos.  J.  Conroy,  IMary  E.  Connor,  John  Woolley,  Mrs.  John 
AVoolley,  and  the  children  of  Mr.  and  Mrs.  Woolley,  the 
Grand  Army  Cemetery  Association  and  the  Veteran  Home 
Association,  corporations,  devisees  or  legatees;  that  John 
Connor  and  Maggie  E.  McCann  were  subscribing  witnesses 
to  said  will;  that  the  next  of  kin  of  said  testator  and  heir 
at  law  is  John  Woolley,  aged  about  fifty  years,  residing  in 
Placer  county,  California,  a  son  of  a  deceased  sister  of  said 
testator;  that  at  the  time  of  the  execution  of  said  will, 
March  22,  1884,  said  testator  was  over  the  age  of  eighteen 
years,  and  aged  sixty  years  or  thereabouts,  and  was  of  sound 
and  disposing  mind,  and  not  acting  under  duress,  menace, 
fraud,  or  undue  influence,  and  was  in  every  respect  compe- 
tent by  last  will  to  dispose  of  all  his  estate;  and  that  it  was 
executed  in  the  manner  and  form  prescribed  by  the  statute; 
and  that  the  executor  named  consents  to  act.  The  petition  of 
said  Haven  further  avers :  That  said  decedent  Hill  also  left 
another  will  in  the  possession  of  one  Mrs.  Mary  E.  Connor, 
dated  November  13,  1884,  in  which  said  Haven  is  named  as 
executor,  and  Wm.  II.  Aiken,  Mary  E.  Connor.  John  Wool- 


382  Coffey's  Probate  Decisions,  Vol.  1. 

ley,  Maggie  E.  McCann,  all  adults;  Eugene  McCarty  and 
Annie  Riley,  minors,  and  "The  Soldier's  Home"  of  Cali- 
fornia, a  corporation,  are  named  as  devisees  or  legatees ;  that 
the  witnesses  to  said  will  are  John  E.  Donnelly  and  Maurice 
J.  Burns,  and  that  at  the  time  said  will  was  executed,  No- 
vember 13,  1884,  said  testator  was  of  competent  age  and  of 
sound  and  disposing  mind;  and,  in  view  of  the  premises, 
petitioner  prays  the  admission  of  both  instruments  to  pro- 
bate, and  that  letters  issue  to  him  as  executor. 

The  application  of  said  Haven  is  opposed  by  John  Wool- 
ley,  who  contests  the  probate  of  the  wills  above  mentioned 
upon  the  grounds  (after  alleging  that  he  is  the  nephew 
and  next  of  kin  and  heir  at  law  of  decedent  Hill),  that  the 
said  wills  were  not  executed  according  to  law,  nor  signed  by 
Hill  nor  by  his  direction,  and  were  not  his  last  will;  that  at 
the  time  of  their  execution  Hill  was  and  for  a  long  time 
prior  thereto  had  been  of  great  age,  blind,  feeble,  debilitated 
and  deranged,  both  in  bodily  and  mental  health,  and  in- 
capacitated thereby  from  executing  a  will ;  that  at  the  time 
of  the  alleged  signing  said  Hill  was,  and  had  been  for  a 
long  time  prior  thereto,  habitually  intemperate  from  the 
constant  and  excessive  use  of  intoxicating  liquors,  and  was 
thereby  so  mentally  deranged  as  to  be  incapacitated  from 
making  a  will;  that  at  the  time  of  the  alleged  signing  of 
said  wills  said  Hill  was  unlawfully  influenced  and  coerced 
by  certain  persons,  beneficiaries  named  in  said  wills,  who 
took  advantage  of  his  weakness  and  his  trust  in  them  to 
compel  him  to  make  such  disposition  of  his  property  ac- 
cording to  their  desires,  and  not  his  own;  that  in  and  prior 
to  the  month  of  February,  1884,  contestant  Woolley  had  the 
custody  and  care  of  the  person  of  said  deceased;  that  during 
said  time  and  prior  thereto  he  enjoyed  the  confidence  and 
trust  of  said  deceased;  that  in  or  about  said  month  of  Feb- 
ruary, 1884,  said  deceased  was  removed  from  his  care  and 
custody  by  the  order  of  said  Haven,  who  was  then  guardian 
of  the  person  and  estate  of  said  Hill,  and  consigned  to  the 
care  of  Mary  E.  Connor  (one  of  the  beneficiaries  named  in 
said  will),  where  Hill  remained  until  his  decease  in  June, 
1885,  that  after  the  removal  of  Hill  to  the  care  and  custody 
of  said  Mary  E.  Connor,  the  contestant  made  repeated  ef- 


Estate  of  Hill.  383 

forts  to  see  him,  but  was  repulsed,  and  in  every  instance  re- 
fused permission  to  enter  the  house  of  said  Mary  E.  Connor, 
where  said  Hill  was  kept;  that  said  Haven  and  the  others 
named  as  beneficiaries  in  said  wills,  with  intent  to  de- 
ceive and  to  influence  Hill  to  make  said  wills,  prevented 
contestant  from  seeing  said  deceased,  and  excluded  him  from 
the  society  of  Hill ;  that  none  of  said  persons  named  as  bene- 
ficiaries is  of  kin  to  deceased,  nor  entitled  to  a  distributive 
share  of  his  estate ;  that  all  of  them  knew  that  at  the  time 
of  the  alleged  sig-nino;  of  said  wills  Hill  was,  from  the  causes 
already  specified,  easily  influenced  by  those  by  whom  he  was 
surrounded,  and  that  so  knowing  they  so  wrought  upon  his 
bodily  and  mental  weakness  to  influence,  by  false  tales  and 
accusations  directed  against  said  contestant,  that  he  became 
causelessly  embittered  and  angry  with  contestant,  and  was 
thus  induced  and  influenced  to  make  said  wills;  that  a  long 
time  prior  to  the  alleged  signing  of  said  will  the  superior 
court  of  San  Francisco  granted  to  said  Haven  letters  of 
guardianship  of  the  person  and  estate  of  said  Hill,  on  the 
ground  that  said  Hill  was  then  and  there  an  incompetent 
person ;  that  at  the  time  of  said  alleged  signing  of  said  wills 
and  prior  thereto  said  Haven  was  the  legally  appointed, 
qualified  and  acting  guardian  of  said  Hill,  and  continued  to 
act  as  such  to  the  time  of  Hill's  decease;  that  Aiken,  named 
as  one  of  the  beneficiaries  in  said  wills,  had  acted  as  Hill's 
attorney,  legal  adviser  and  confidential  friend  in  matters 
connected  with  the  pension  and  arrearage  thereof  due  said 
deceased  from  the  government  of  the  United  States;  and 
that  the  other  persons  aforementioned  as  beneficiaries  were 
in  more  or  less  close  and  intimate  relations  with  said  de- 
ceased, and  used  every  means  to  obtain  his  confidence  up 
to  the  time  of  the  said  alleged  execution  of  the  said  wills, 
and  did  so  obtain  his  confidence,  and  that  they  knew  his 
mind  was  weak  anl  easily  influenced;  and  that  they  and 
each  of  them  did  perpetrate  a  fraud  upon  said  deceased  by 
inducing  him  to  sign  said  paper;  that  they  and  each  of  them 
suggested  to  said  deceased,  prior  to  the  time  of  said  alleged 
signing,  that  contestant  was  an  impostor,  and  was  attending 
to  and  caring  for  said  deceased  for  the  purpose  of  getting 
his   money   and   estate,   that   contestant   was   constantly   rob- 


384  Coffey  ^s  Probate  Decisions,  Vol.  1. 

bing  deceased  of  his  money,  and  other  suggestions  of  like 
nature;  which  suggestions  were  false  and  fraudulent,  and 
made  with  intent  to  deceive  said  deceased  and  had  that  ef- 
fect, embittering  his  mind  against  contestant,  and  inducing 
him  while  in  such  frame  of  mind  to  sign  said  will. 

The  foregoing  is  the  substance  of  both  counts  of  the  con- 
test, to  which  answer  was  made  by  the  proponents  and  by 
the  legatees  named  in  said  will,  denying  specifically  all  the 
charges  and  averments  of  the  said  contest  tending  to  estab- 
lish its  invalidity,  and  alleging  that  said  will  or  wills  were  in 
all  respects  valid  and  entitled  to  admission  to  probate. 

Thos.  J.  Hill,  the  testator,  came  to  California  as  a  soldier 
in  the  Stevenson  Eegiment  in  1847,  having  enlisted  in  New 
York  in  the  year  preceding;  in  October,  1848,  he  was  dis- 
charged, and  went,  in  1849,  to  the  mines,  being  mainly 
engaged  in  Tuolumne  county,  where  he  took  an  active  inter- 
est in  public  affairs,  and  was  a  candidate  for  sheriff  of  the 
county,  without  success,  and  the  occupant  of  the  post  of 
deputy  sheriff,  and  otherwise  locally  conspicuous;  his  career 
was  marked  by  the  vicissitudes  common  to  the  experience  of 
early  days  in  California,  until,  in  1861,  he  re-entered  his 
country's  service  as  a  volunteer,  and  continued  until  the 
expiration  of  his  term  of  enlistment.  The  exposure  and 
hardship  undergone  by  him  during  a  portion  of  this  period, 
while  stationed  in  Arizona,  resulted  in  an  impairment  of  his 
vision  which  compelled  him  to  enter  the  County  Hospital, 
and  ultimately  his  entire  loss  of  sight  and  transfer  to  the 
almshouse.  Upon  being  awarded  a  pension  by  the  govern- 
ment, sufficient  to  enable  him  to  live  comfortably,  according 
to  his  station,  he  left  the  Almshouse  and  came  to  the  city. 

Here  he  lodged  at  different  places,  having  hired  attendants, 
until  his  nephew,  John  Woolley,  the  contestant,  was  sent  for 
to  the  country  and  came  to  care  for  him  in  May,  1883,  remain- 
ing until  February,  1884,  when  he  left,  according  to  his  own 
testimony,  because  the  service  was  too  confining  and  he 
couldn't  get  along  with  the  boy,  Thos.  J.  Conroy,  whom  Hill 
had  hired  about  three  years  before,  and  who  was  and  had 
been  for  nearly  all  that  time  the  personal  attendant  of  the 
blind  man,  who  had  acquired  an  attachment  for  the  boy,  in 


Estate  of  Hill.  385 

spite  of  certain  censurable  traits  in  the  latter 's  character. 
The  pension  was  procured  thfough   the   agency   of   W.   H. 
Aiken,  an  attorney  at  law  employed  by  Hill  for  that  purpose, 
who   began  his  acquaintance   with   Hill   in   1869,   when  the 
latter  visited  him  at  his  office  to  secure  his  services  in  that 
behalf,  and  from  that  time  on  they  continued  intimate,  and 
when,  the  pension  being  obtained,  Hill  came  out  of  the  Alms- 
house, it  was  Aiken  who  selected  a  room  for  him  and  visited 
him  frequently,   and  obtained  from  time  to  time  financial 
favors  from  him,  and  seems  to  have  been  his  main  adviser 
until,  on  account  of  the  transaction  between  Hill  and  Pension 
Agent  Cox,  which  came  to  a  head  in  1882,  the  decedent  was 
placed  under  guardianship.     That   transaction,   with   which 
Aiken  testifies  he  had  nothing  to  do,  consisted  in  Hill's  allow- 
ing Cox  to  invest  $5,000  of  his  pension  moneys  in  a  mortgage 
on  a  mill  that  burned  down,  and  a  mine  that  "petered  out"; 
which  conduct  of  Cox  coming  to  the  notice  of  the  govern- 
ment, a  special  agent  of  the  treasury,  a  Mr.  Magan,  was  sent 
out  to  investigate,  and,  as  a  consequence,  a  restitution  of  the 
amount  was  made  by  Cox  to  Hill.     Thereafter,  in  January, 
1883,  the  special  agent  Magan  introduced  to  Hill  the  pro- 
ponent, James  M.   Haven ;  this  was  at  a  house  on  Vallejo 
street,  where  Hill  was  in  charge  of  Conroy  and  a  Mrs  Clark, 
a  house  attendant.     January  29,  1883,  the  petition  of  said 
Magan   was  filed,   asking,   for  the   reasons   that   Hill   being 
upward  of  sixty  years  of  age,  totally  blind  and  in  feeble 
health,  and  by  reason  of  extreme  old  age  and  of  recent  sick- 
ness which  had  impaired  his  mind,  being  mentally  incompetent 
to  manage  his  property,  that  a  guardian  of  his  person  and 
estate  be  appointed,  and  praying   that    said    Haven    be    ap- 
pointed.    On   the    5th    of   February   the    (iourt    found   that 
said  Hill  had  estate  that  needed  care,  and  "that  said  Thomas 
J.  Hill,  by  reason  of  blindness,  old  age  and  physical  infirmity, 
is  incompetent  to  manage  his  business  or  take  charge  of  his 
estate,"  and  ordered  that  Haven  be  appointed  guardian,  and 
that  letters  issue  upon  filing  a  proper  bond.     From  that  time 
Haven  took  charge  of  Hill    as    guardian,  and    directed    his 
nflPairs  until  the  death  of  the  ward;  visiting  him  frequently 
i\t  his  various  places  of  residence,  counseling  him,  and  seeing 

Prob.  Dec,  Vol.  1—25 


386  Coffey's  Probate  Decisions,  Vol.  1. 

to  the  service  of  attendants.  During  this  period  Conroy, 
and  after  him  one  Adams,  owaited  on  Hill  until  Woolley 
came  as  stated,  and  Woolley  had  principal  personal  charge 
until  February,  1884.  Woolley  went  to  the  office  of  the 
guardian.  Haven,  and  said  he  couldn't  remain  longer  with 
Hill  because  of  the  latter 's  abuse;  and  immediately  Haven 
caused  Hill  to  be  removed  to  the  house  of  Mrs.  Mary  E. 
Connor,  whither  Hill  was  content  to  go.  There,  it  is  said^ 
he  improved  greatly  in  condition,  and  at  that  house  he 
executed  the  will  of  March  22,  1884,  and  of  November  13, 
1884,  which  instruments  are  here  under  contest. 

The  first  question  to  be  considered  is  the  effect  of  the 
existence  of  the  letters  of  guardianship  upon  the  capacity 
of  Hill  to  make  a  will. 

Counsel  for  contestant  contends  that  the  testator,  having 
been  declared  mentally  incompetent,  he  could  not  execute 
a  will  until  his  restoration  to  capacity,  and  that  such 
restoration  must  be  determined  in  the  same  manner  as  his. 
incapacity,  according  to  section  40  of  the  Civil  Code,  which 
reads : 

"Section  40.  After  his  incapacity  has  been  judicially  de- 
termined, a  person  of  unsound  mind  can  make  no  conveyance 
or  other  contract,  or  waive  any  right,  until  his  restoration 
to  capacity.  But  a  certificate  from  the  medical  superintend- 
ent or  resident  physician  of  the  insane  asylum,  to  which  such 
person  may  have  been  committed,  showing  that  such  person 
had  been  discharged  therefrom,  cured  and  restored  to  reason, 
shall  establish  the  presumption  of  legal  capacity  in  such  per- 
son from  the  time  of  such  discharge. ' ' 

The  section  as  here  quoted  was  adopted  in  1878,  and  was 
an  amendment  of  the  statute  which  theretofore  read  as  fol- 
lows : 

"Section  40.  After  his  incapcity  has  been  judicially 
determined,  a  person  of  unsound  mind  can  make  no  convey- 
ance or  other  contract,  nor  delegate  any  power,  nor  waive 
any  right,  until  his  restoration  to  capacity  is  judicially 
determined.  But  if  actually  restored  to  capacity  he  may 
make  a  will,  though  his  restoration  is  not  thus  determined."' 


Estate  of  Hill.  387 

Counsel  for  contestant  claims  that  the  section  as  amended 
in  1878,  and  as  it  has  continued  since,  is  a  conclusive  bar  to 
testator's  act,  until  he  shall  be  restored  to  capacity  by  judicial 
decree.  But  the  section  of  the  Civil  Code  speaks  of  "a 
person  of  unsound  mind,"  and  would  seem  to  refer  to  those 
persons  whose  minds  are  so  deranged  as  to  necessitate  com- 
mittal to  an  asylum  for  the  insane,  and  even  in  such  case  it 
is  not  at  all  clear  that  "restoration  to  capacity"  means  a 
judicial  ascertainment  and  declaration  to  that  effect.  If  it 
were  intended  to  have  such  meaning,  one  word  only  was 
necessary  to  place  it  beyond  doubt ;  the  legislator  could  easily 
have  employed  the  epithet  "judicial,"  qualifying  "restora- 
tion to  capacity";  instead  of  which  he  has  amended  by  strik- 
ing out  the  clause  "is  judicially  determined"  after  those 
words,  leaving  it  to  be  implied,  if  it  be  not  explicit  and  in 
no  need  of  implication,  that  actual  restoration  to  capacity  is 
the  true  intent  of  the  section. 

But  it  is  not  clear  to  my  mind  that  "insane"  and  "incom- 
petent" are,  as  counsel  for  contestant  contends,  convertible 
terms.  A  person  may  be  incompetent  by  reason  of  insanity, 
or  from  some  other  cause  incapable  of  caring  for  his  prop- 
erty— the  statute  speaks  of  the  "insane  or  incompetent" 
person  (Code  of  Civil  Procedure,  section  1763)  ;  it  speaks 
further  (section  1766)  of  the  proceeding  for  judicial  restora- 
tion to  capacity  before  the  court  of  the  county  in  which  the 
person  "was  declared  insane";  it  requires  notice  to  be  given 
to  the  guardian  and  relatives  of  "the  person  so  declared 
insane  or  incompetent."  From  a  consideration  of  the  w^hole 
of  the  statute,  I  am  of  opinion  that  there  is  a  distinction  and 
a  difference  between  "insane"  and  "ineompetent, "  and  that 
they  are  not.  in  the  sense  of  the  statute,  convertible  terms. 
Now,  what  did  the  court  declare  in  the  proceedings  to  adjudge 
Hill  incompetent?  Was  he  declared  insane?  It  seems  not; 
for  the  finding  of  the  court  is  in  these  words:  "That  said 
Thomas  J.  Hill,  by  reason  of  blindness,  old  age  and  physical 
infirmity,  is  incompetent  to  manage  his  business  or  take  charge 
of  his  estate." 

Upon   the  finding,   the   result   of   the   "full    hearing   and 
examination"    (Code  of  Civil  Procedure,  section  176-4),  by 


388  Coffey's  Probate  Decisions^  Vol.  1, 

the  court,  Haven  was  appointed  the  guardian  of  Hill.  Now, 
I  apprehend  that,  in  judging  of  the  effect  upon  Hill's  testa- 
mentary capacity  of  the  guardianship  proceedings,  this 
court  must  have  resource  to  the  decree  or  "declaration  of 
incompetency ' '  and  be  bound  by  its  terms ;  and  the  whole 
of  that  decree  or  declaration,  as  hereinabove  quoted,  contains 
no  item  importing  insanity.  I  have  given  to  this  question 
the  greater  consideration,  because  the  full  and  forcible  pres- 
entation- of  the  views  of  counsel  for  contestant  impressed 
me  strongly  at  the  hearing,  and  I  have  felt  in  duty  bound  to 
examine  carefully  the  grounds  of  his  judgment,  as  stated  in 
argument;  but  after  examination  I  am  constrained  to  differ 
from  him.  I  do  not  think  that  the  guardianship  proceedings 
which  resulted  in  the  order  of  February  5,  1883,  took  away 
the  testamentary  capacity  of  Thomas  J.  Hill,  or  that  it  is 
"a  conclusive  bar"  to  this  proceeding.  It  is  proper,  there- 
fore, to  consider  the  evidence  as  to  the  sanity  of  the  testator 
at  the  times  of  the  execution  of  the  instruments  propounded 
for  probate. 

Was  Thomas  J.  Hill,  the  testator,  of  sound  mind  on  March 
22,  1884,  and  November  13,  1884,  or  on  either  of  those  occa- 
sions, when  the  papers  offered  for  probate  were  signed? 
Civ.  Code,  sec.  1270. , 

Contestant  alleges  that  at  those  times  decedent  was  of 
great  age,  blind,  feeble,  debilitated  and  deranged  in  bodily 
and  mental  health,  and  thereby  incapacitated  from  executing 
a  will;  and  that  also  at  said  times  decedent  was  intemperate 
from  constant  use  of  intoxicating  liquors,  and  thereby  so 
mentally  deranged  as  to  be  incapacitated  from  making  a  will. 

In  support  of  these  allegations  contestant,  after  producing 
the  documents  to  assail  their  validity,  introduced  James  M. 
Haven,  who  testified  that  Hill  died  June  24,  1885 — Haven  is 
the  proponent — Maggie  E.  McCann,  a  subscribing  witness  to 
the  first  will,  who  identified  the  instrument  and  narrated  the 
circumstances  under  which  she  signed  as  a  witness.  She 
testified  that  Hill  was  blind;  that  he  said  to  her,  "Margaret, 
sign  this,"  and  that  at  the  time  he  was  of  sound  mind  and 
acting  of  his  own  will  and  declared  it  to  be  his  will,  etc.  John 
E.  Donnelly,  a  subscribing  witness  to  the  will  of  November 


Estate  of  Hill.  389 

13,  1884,  testified  that  he  knew  Hill,  and  that  he  signed  the 
paper  at  224  Eleventh  street,  San  Francisco,  at  Hill's  request, 
in  his  presence  and  in  the  presence  of  the  other  witness, 
Maurice  J.  Burns,  Hill  declaring  the  paper  to  be  his  last 
will  and  testament.  Witness  Donnelly  drew  this  last  will, 
and  every  word  of  it  was  dictated  by  Hill ;  witnesses  Donnelly 
and  Burns  were  inmates  of  the  same  house  where  Hill  was 
residing,  and  had  known  him  in  that  way  for  some  months 
prior  to  this  occasion.  Donnelly  further  testifies  that  Hill 
dictated  the  outlines  of  the  will  and  he  wrote  it.  Hill  said, 
' '  Give  to  so  and  so, ' '  and  then  the  scribe  filled  it  out ;  the 
testator  said  to  Burns,  the  other  witness,  "Maurice,  sign 
this. ' '  The  will  was  read  to  Hill  by  witness ;  Hill  made  his 
mark  -|-  to  the  paper,  and  one  Charles  H.  Middleton  wrote 
his  name  as  witness  to  the  mark.  The  testator  w^as  very 
particular  about  his  will,  so  testifies  Donnelly.  After  the 
testimony  of  Donnelly  contestant  offered  in  evidence  the 
papers  in  the  guardianship  matter,  to  show  that  the  testator 
was  of  unsound  mind  at  the  time  of  signing  the  wills ;  and 
then  called  Eleanor  White,  who  testified  that  she  knew  Hill, 
who  rented  apartments  of  her  at  1141  Folsom  street,  where 
Mr.  Woolley  was  his  nurse,  to  whom  he  was  very  friendly. 
This  began  in  June,  1883 ;  Hill  was  intemperate  in  his  habits ; 
he  drank  to  excess ;  his  mind  was  very  weak ;  she  saw  him  once 
or  twice  a  week  for  the  first  two  months,  and  not  so  often  the 
last  month;  saw  him  an  hour  or  two  at  a  time;  herself  and 
husband  frequently  called  upon  Hill ;  in  her  opinion  Hill  was 
not  of  sound  mind ;  her  reason  for  this  opinion  was  what  she 
saw  of  him  and  his  conduct;  his  nephew,  the  contestant,  was 
with  him  all  the  time,  and  was  very  kind  to  him ;  Hill  ap- 
peared to  her  at  all  times  like  a  man  who  was  under  the 
infiuence  of  liquor;  Conroy  was  Hill's  attendant  during  this 
time ;  witness  never  had  seen  an  insane  person,  and  her  opinion 
of  Hill's  unsoundness  was  based  upon  his  habits  of  drinking 
and  his  changeable  views. 

The  next  witness  was  Dr.  N.  P.  Foster,  a  physician  whom 
Woolley  took  to  see  Hill  in  November.  1883,  and  he  found 
Hill  suffering  from  alcoholic  poisoning.  The  witness  defined 
the  different  phases  of  alcoholism;  Hill  was  delirious;  wholly 


390  Coffey's  Probate  Decisions,  Vol.  1. 

oblivious  to  everything ;  not  conscious  of  any  of  his  surround- 
ings; taking  his  condition  altogether,  he  might  be  the  victim 
of  chronic  alcoholism ;  he  was  in  an  advanced  stage  of  alco- 
holism; the  witness  judged  from  his  observation  of  Hill  that 
he  had  been  a  hard  drinker  for  years;  chronic  alcoholism 
impairs  the  mind  and  gradually  leads  to  general  imbecility. 

Dr.  Foster  further  testified  that  he  saw  Mr.  Hill  at  106 
Langton  street;  he  was  there  about  half  an  hour;  Hill's  con- 
dition couldn't  have  been  brought  about  by  a  single  debauch; 
the  room  was  comfortably  furnished,  and  Hill  was  cleanly 
clad.  Woolley  was  sober  enough  to  know  what  he  was  about, 
although  the  witness  paid  no  particular  attention  to  him,  as 
Woolley  was  not  his  patient. 

Thomas  J.  Conroy,  the  attendant  of  Hill,  testified  that  he 
first  went  to  work  for  him  in  1881 ;  left  him  three  or  four 
times ;  worked  for  him  over  three  years  oif  and  on,  took  charge 
of  his  room,  led  him  around  wherever  he  wanted  to  go ;  never 
heard  any  of  the  Connor  family  talking  to  him  about  any- 
body ;  Plill  called  Mrs.  Connor  ' '  mother, ' '  she  called  him 
"papa,"  and  the  children  called  him  "Papa  Hill";  the  chil- 
dren were  up  there  nearly  all  the  time.  Eugene  McCarthy 
waited  on  Hill  a  good  deal.  Eugene  is  a  beneficiary  in  one 
of  the  wills,  as  is  Conroy  in  the  first  will.  Conroy  testifies 
that  Hill  was  not  a  firm  man,  very  changeable  in  mind;  he 
would  never  have  his  right  mind  talking ;  he  said  he  would 
never  have  Woolley  come  near  the  house ;  this  was  said  in 
presence  of  the  Connors;  Hill  drank  very  much;  if  liquor 
was  not  given  to  him  he  would  jump  up  and  get  mad,  curse 
and  swear,  and  say,  "if  he  couldn't  have  liquor  he  might 
as  well  die";  he  would  rather  drink  whisky  than  eat.  Mr. 
Aiken  would  come  and  borrow  money  sometimes,  and  he 
would  stay  half  an  hour  talking;  witness  was  present  some- 
times during  their  conversations.  Aiken  had  an  influence 
over  him;  everything  Aiken  would  tell  him  to  do  he  would 
do ;  Hill  was  easily  influenced  by  those  around  him.  Witness 
is  a  few  months  over  eighteen  years  of  age ;  witness  was  pres- 
ent at  the  time  Mr.  Haven  drew  the  will  of  March,  1884,  in 
which  he  (witness)  is  a  legatee  for  $500;  Hill  sent  for  Haven 
to  make  out  a  new  will;  witness  couldn't  remember  the  con- 


Estate  of  Hill.  391 

versation ;  Haven  was  there  half  or  three-quarters  of  an  hour. 
Hill  was  very  firm  in  insisting  on  his  whisky ;  he  was  strong 
on  that  subject,  and  he  was  very  stubborn  on  the  question  of 
refusing  admission  to  the  Woolleys ;  witness  read  the  paper 
to  Hill  every  morning,  and  got  books  from  the  library;  Hill 
used  to  talk  politics  with  persons  sometimes ;  he  also  planned 
to  go  out  on  Decoration  Day,  and  we  went  out:  he  used  to 
know  when  witness  went  out  and  when  he  came  in ;  still,  wit- 
ness thought  there  was  no  great  intelligence  about  him;  he 
could  recognize  a  man  by  his  voice,  not  by  his  step. 

John  Bush,  another  witness,  was  the  landlord  of  the  place 
I305I/2  Vallejo  street,  which  was  occupied  for  a  while  by  the 
deceased;  witness  saw  Hill  occasionally,  used  to  visit  him  to 
keep  his  spirits  up  when  he  had  no  society;  Hill  was  blind, 
paralyzed  a  little  on  the  right  side,  a  little  lame  in  the  arm ; 
he  had  a  nurse,  a  lady,  and  a  boy  to  attend  him;  Hill  was 
so  fickle-minded  that  witness  didn't  think  he  knew  his  own 
mind;  Hill  used  to  say,  "They  are  robbing  me  entirely";  he 
said  Haven,  his  guardian,  threatened  to  take  his  pension 
away;  in  witness'  opinion  Hill  could  be  led  by  those  about 
him :  Mr.  Aiken  rented  the  place  from  me  for  Hill ;  witness 
saw  Aiken  there  on  several  occasions.  Hill  said  that  Aiken 
charged  him  $750  for  the  furniture  in  the  "flat,"  which,  in 
witness'  opinion,  was  worth  no  more  than  $150;  Hill  said 
that  if  he  didn't  do  as  Haven  told  him  the  latter  would  stop 
his  pension  and  put  him  back  in  the  Almshouse ;  witness  took 
a  drink  occasionally  with  Hill;  at  one  time  Hill  got  a  Mr. 
McManus  to  see  a  lawyer  to  change  his  guardianship,  but 
Hill  changed  his  mind,  and  the  man  said:  "Hill,  I  want  no 
more  to  do  with  you;  you're  a  fickle-minded  man  and  don't 
know  your  own  mind." 

Sarah  Clark  testified  that  she  was  nurse  for  Hill  for  nine 
months,  and  kept  house  for  him ;  saw  him  every  da.y ;  he  was 
in  the  habit  of  drinking  every  day;  deprived  of  his  dram 
he  became  very  ugly;  he  alwaj^s  spoke  well  of  Aiken  and 
Haven ;  he  had  no  confidence  in  anybody  but  Aiken ;  wanted 
Aiken  to  come  every  day;  if  he  wanted  to  buy  anything  in 
the  shape  of  dry  goods  he  wanted  Aiken  to  make  the  pur- 
chase; he  told  her  on  one  occasion  that  Haven  said  that  if 


392  Coffey's  Probate  Decisions,  Vol.  1. 

he  didn't  do  as  he  (Haven)  wanted  him  to  do,  he  would  put 
him  in  a  private  asylum ;  Hill  told  witness  that  he  gave  Aiken 
$1,000  for  procuring  his  pension;  when  special  agent  Magan 
visited  Hill,  the  latter  told  him  that  Pension  Agent  Cox  had 
$5,000  and  Aiken  $1,000,  and  he  spent  money  for  furniture; 
that  Cox  had  invested  in  a  mining  mill  at  four  per  cent,  or 
something,  and  he  thought  Aiken  earned  his  thousand  dol- 
lars. Magan  introduced  Haven  to  Hill.  Hill  seemed  to  know 
what  was  going  on;  he  knew  the  voices  of  persons  but  not 
their  step ;  he  said  he  had  no  relations ;  he  drank  a  great  deal, 
whisky  every  fifteen  or  twenty  minutes ;  we  always  put  water 
in  it ;  once  he  had  delirium  tremens ;  Conroy,  the  boy  attend- 
ant, used  to  give  him  whisky;  couldn't  help  it,  because  he 
would  get  ugly  for  it ;  Conroy  used  to  treat  Hill  cruelly,  would 
provoke  him;  sometimes  the  boy  would  go  away  and  stay  the 
whole  night ;  this  would  make  the  old  man  wild,  but  he  would 
easily  forgive  him,  as  he  liked  the  boy  very  much.  Tommy 
(Conroy)  used  to  carry  the  money;  during  the  time  of  Mr. 
Magan  he  didn't  drink  so  much,  perhaps  five  cents  worth  of 
beer  a  day,  for  say  two  months,  January  and  February,  1883 ; 
witness  left  him  in  May,  1883. 

Dr.  James  D.  Whitney,  physician  and  surgeon,  of  over 
twenty  years'  practice  here,  visited  Hill  once  when  the  lat- 
ter had  broken  his  arm,  but  another  doctor  nearer  by  was 
called  and  there  was  no  occasion  for  witness;  this  was  in 
Vallejo  street;  Hill  was  in  a  very  nervous  condition  and  re- 
quired anodynes;  witness  was  afraid  he  would  go  into  de- 
lirium tremens;  he  was  evidently  suffering  from  alcoholism; 
couldn't  say,  except  from  information,  whether  he  was  in  a 
primary  or  advanced  stage;  assuming  he  was  suffering  from 
alcoholism  and  partial  paralysis,  witness  should  say  he  was 
of  unsound  mind ;  if  his  mind  was  not  too  much  affected  be- 
fore, a  change  to  comfortable  conditions  would  tend  to  restore 
him  to  a  normal  state. 

Patrick  Lynch,  a  resident  of  San  Francisco  off  and  on  since 
1847,  testified  that  he  knew  Hill  from  1846,  when  he  first 
saw  him  on  Governor's  Island,  New  York,  then  afterward  in 
1847  at  the  Presidio;  after  that  saw  him  on  Guerrero  street 
during  the  year  1883,  called  there  frequently  to  see  him ;  had 


Estate  of  Hill.  393 

conversation  with  him;  would  not  think  he  was  insane  but 
wouldn't  put  him  up  for  a  man  of  strong  mind;  witness' 
opinion  was  that  Hill  was  a  man  of  changeable  mind ;  didn  't 
think  he  was  in  his  right,  sound  mind  at  any  time  he  visited 
him  on  Guerrero  street,  when  Woolley  had  charge  of  him,  say 
in  1882;  Woolley 's  treatment  of  Hill  was  kind,  food  good, 
rooms  clean ;  their  relations  very  friendly ;  Hill  spoke  kindly 
of  Woolley,  called  him  "nephew,"  and  Woolley  called  him 
"Uncle  Tom."  Witness  was  a  subscribing  witness  to  a  revo- 
cation of  a  will,  together  with  Woolley;  the  revocation  was 
drawn  by  John  Quincy  Adams  and  was  signed  by  Hill  on 
Guerrero  street ;  had  conversations  with  Hill  about  his  blind- 
ness; he  told  witness  it  was  caused  by  neuralgia,  and  heat 
and  exposure  in  Arizona;  saw  James  Adams  and  others  on 
Guerrero  street ;  Adams  had  been  acting  as  nurse ;  there  were 
four  rooms  in  the  house  which  they  occupied ;  house  well  kept, 
fc.nd  Hill's  personal  condition  neat  and  cleanly;  Hill  was  gen- 
erally intelligent  in  conversation;  he  and  witness  would  talk 
over  the  topics  of  the  day  and  over  old  times  when  they  were 
soldiers  together;  from  1849  to  1873  or  1874  witness  lost 
sight  of  Hill;  once  Hill  was  angry  because  he  wanted  to  set 
up  Woolley  in  business  and  let  him  have  $2,500  or  $3,000, 
and  Haven  wouldn't  allow  it;  witness  didn't  advise  one  way 
or  other,  but  simply  said  he  thought  it  might  be  a  good  thing. 

James  Hill  knew  deceased  in  1883;  they  were  neighbors 
in  1141  Folsom  street;  they  were  veterans  of  the  war,  wit- 
ness of  1861-65,  deceased  of  the  Mexican  War;  witness  knew 
of  no  particular  delusion,  except  when  Hill  was  in  liquor. 

John  Woolley,  contestant,  testified  that  deceased  was  wit- 
ness' mother's  brother;  first  met  him  on  Guerrero  street;  he 
had  sent  a  letter  inquiring  for  witness,  who  didn't  care  to 
stay  with  him,  as  witness  had  a  family  in-  Placer  county ;  wit- 
ness took  charge  of  him  May  11,  1883,  and  left  him  in  Feb- 
ruary, 1884;  their  relations  were  good;  witness  treated  him 
as  kindly  as  if  he  were  a  child,  and  the  feeling  was  kind  in 
return,  until  Plill's  mind  was  poisoned  against  witness;  wit- 
ness gave  Mr.  Haven  as  a  reason  for  leaving  Hill  that  the 
life  was  too  wearing  for  him  and  he  was  too  closely  confined ; 
witness  didn't  know  who  poisoned  ITill's  mind  against  him. 


394  Coffey's  Probate  Decisions,  Vol.  1. 

but  he  thought  so  from  Hill's  changes;  he  cursed  him  and 
his  wife ;  witness  didn  't  receive  any  particular  compensation ; 
witness  went  there  from  love,  because  Hill  was  his  mother's 
brother;  Hill  offered  him  twenty  dollars  per  month;  witness 
told  Hill  he  couldn't  take  any  such  sum,  but  witness  did  draw 
some;  the  day  witness  left  he  had  a  conversation  with  Hill 
in  Haven 's  presence,  when  witness  asked  Hill  for  some  money, 

and  Hill  answered  that  he  didn 't  owe  him  ' '  a  d d  cent ' ' ; 

witness  told  his  uncle  he  thought  that  was  pretty  hard  after 
his  kind  treatment  of  him,  and  Hill  said  witness  treated  him 
well;  witness  was  housekeeper  and  nurse,  and  did  the  cook- 
ing. There  was  also  introduced  in  evidence  by  contestant 
a  paper  purporting  to  be  a  will  of  Hill,  dated  August  20, 
1882,  to  show  that  a  large  number  of  persons  named  as  bene- 
ficiaries were  relatives  of  Aiken,  named  therein  as  executor; 
this  paper  came  from  the  possession  of  James  M.  Haven,  who 
proceeded  to  explain  certain  pencil  marks  and  memoranda  on 
the  margins  of  the  paper,  made  and  used  in  the  drawing  of 
another  will  by  Haven  for  Hill ;  this  document  was  called  the 
"Blood,"  or  "Aiken,"  or  " Blood- Aiken "  will  to  distinguish 
it  from  the  others. 

I  think  the  foregoing  is  a  fair  short  statement  of  the  sub- 
stance of  the  testimony  for  contestant  and  plaintiff  herein. 

For  the  proponent  and  defendant  Donnelly  testified  as  be- 
fore substantially,  and  also  that  Hill  was  a  very  neat  and 
tidy  man,  of  cleanly  habits,  intelligent  and  well  posted  in 
affairs,  could  hold  his  own  in  argument;  fond  of  music,  de- 
lighted with  witness'  banjo  playing;  witness  is  an  actor  and 
variety  performer;  witness  was  of  opinion  that  Hill  was  per- 
fectly sane  at  time  of  making  the  wills  of  March  22  and  No- 
vember 13,  1884;  judged  so  from  his  conversation  and  con- 
duct and  manner;  he  was  logical  and  clear  in  argument. 
Maurice  J.  Burns,  the  other  subscribing  witness  to  will  of  No- 
vember 13,  1884,  corroborated  witness  preceding.  Both  these 
witnesses  were  friends  of  the  Connor  household. 

Edward  Barthrop  came  to  California  in  same  regiment  with 
Hill,  knew  him  continuously  thereafter  until  1849 ;  were  min- 
ing partners  in  Tuolumne  and  other  mines;  afterward  wit- 
ness met  Hill  at  the  beginning  of  the  war  of  1861-65,  in  which 


Estate  of  Hill.  395 

they  both  served  in  different  branches  of  the  Union  Army; 
next  saw  him  in  Guerrero  street ;  had  a  conversation  with  him 
of  about  an  hour's  length  at  that  time;  he  was  perfectly  sane 
in  mind;  witness'  reason  for  this  opinion  was  that  he  could 
discern  no  difference  between  Hill  then  and  when  he  had  seen 
him  before,  except  that  physically  he  was  blind  and  para- 
lyzed; saw  him  again  on  Guerrero  street;  paid  a  third  visit 
c>nd  he  had  moved  to  Langton  street,  where  he  was  not  as 
comfortably  situated;  WooUey  was  attending  to  him  there; 
James  Adams  was  his  attendant  on  Guerrero  street ;  had  con- 
versed with  him  on  Langton  street  for  about  twenty  minutes ; 
he  was  of  sound  mind;  next  saw  him  on  Eleventh  street  at 
Mrs.  Connor's;  his  condition  as  compared  with  what  it  was 
on  Langton  street  was  materially  improved  in  his  surround- 
ings, and  as  to  his  manner  and  his  cheerfulness;  called  there 
about  twice  in  November,  1884,  about  two  or  three  times  a 
week  witness  called  there;  had  one  conversation  of  three 
hours'  duration;  Hill  said  he  was  contented;  his  memory  w^as 
good,  he  set  witness  right  as  to  dates,  had  a  retentive  mem- 
ory; he  was  sane  in  mind;  witness  never  had  any  reason  to 
doubt  it;  Hill  said  to  witness  that  he  was  glad  to  get  rid  of 
WooUey;  that  if  he  had  stayed  there  with  Woolley  he  would 
have  died,  if  he  had  remained  on  Langton  street,  whence 
Haven  had  removed  him;  Hill  told  witness  he  had  been  left 
alone  in  the  house  at  night,  and  that  his  money  had  not  been 
properly  accounted  for;  Hill  said  he  was  satisfied  with  his 
guardian  and  was  contented;  witness  disclaimed  any  knowl- 
edge of  the  terms  of  the  will,  or  intimacy  with  the  parties. 

Frederick  L.  Post  first  met  Hill  in  New  York  in  1846,  at 
the  headquarters  of  Company  A,  Stevenson 's  Regiment,  where 
Hill  was  mustered  in  as  a  drummer,  witness  was  orderly  ser- 
geant; in  October,  1848,  the  regiment  disbanded;  next  saw 
deceased  in  1861,  and  again  in  1874  or  1875;  after  that  he 
went  to  Almshouse ;  in  1878  he  was  brought  in  to  get  his  pen- 
sion, and  Colonel  Stevenson  and  witness  identified  him;  in 
1882  witness  had  a  Thanksgiving  dinner  with  Hill ;  their  con- 
versations were  usually  about  the  old  regiment,  its  survivors, 
and  like  topics ;  Hill  desired  witness  to  make  inquiries  about 
his  relatives,  as  he  desired  to  leave  them  what  he  had ;  at  his 


396  Coffey's  Probate  Decisions,  Vol.  1. 

instance  I  wrote  to  Wm.  Woolley,  his  sister's  husband,  at 
Campo  Seco,  who  was  a  member  of  their  old  company;  next 
saw  Hill  on  Guerrero  street;  his  nephew  had  charge  of  him; 
witness  used  to  stay  there  an  hour  or  two  at  a  time ;  once  Wm. 
Woolley  was  there  on  a  visit ;  on  Decoration  Day  of  1883  wit- 
ness accompanied  Hill  in  a  carriage  to  Odd  Fellows'  Ceme- 
tery, was  with  him  three  or  four  hours  that  day,  the  best 
part  of  the  day ;  witness  next  saw  him  on  Langton  street ; 
he  seemed  to  feel  uncomfortable ;  whisky  was  the  trouble ;  saw 
him  again  when  he  removed  to  Eleventh  street,  in  1885,  and 
in  Jun-e  1884,  was  there  two  or  three  hours.  The  witness  said 
that  Hill  complained  of  Woolley  in  some  particulars;  Hill 
seemed  to  think  Woolley 's  family  were  too  great  a  tax  upon 
his  resources ;  Hill  was  well  treated  at  the  house  of  Mrs.  Con- 
nor, but  he  had  too  much  whisky ;  this  was  true  at  all  times ; 
on  Thanksgiving  Day,  1882,  when  witness  was  at  dinner  with 
him.  Hill  was  mentally  sane;  witness  said  he  could  not  but 
be  struck  with  Hill's  extraordinary  memory;  was  struck  with 
its  retentive  power,,  especially  with  regard  to  the  details  in 
obtaining  his  pension  from  the  agent ;  his  memory  was  strong 
in  accounting  for  those  whom  he  had  kno^vn,  or  in  recount- 
ing the  scenes  through  which  he  and  witness  had  passed; 
this  was  while  Hill  was  at  Mrs.  Connor's  house;  witness  used 
to  visit  there  on  Sundays ;  Hill  was  generally  clear  and  lucid ; 
sometimes  witness  said  (in  answer  to  counsel  for  contestant) 
he  didn  't  think  he  was  of  sound  mind ;  he  was  weak  and  vacil- 
lating, except  upon  the  question  of  drink,  and  upon  that  point 
he  was  very  positive;  witness  thought  that  persons  who  con- 
stantly plied  him  with  liquor  could  do  anything  they  pleased 
with  him;  when  witness  was  at  Mrs.  Connor's,  Hill  was  sup- 
plied with  liquor  upon  his  demand;  not  more  than  two  or 
three  times  upon  any  occasion;  he  was  subject  to  vagaries; 
the  one  who  was  nearest  to  him  and  humored  him  most  could 
do  almost  anything  with  him ;  witness  thought  Hill  had  more 
liquor  at  Vallejo  street  than  elsewhere;  when  he  was  under 
care  of  Mrs.  Clark  and  the  boy  Conroy ;  on  Folsom  street  Hill 
talked  as  if  he  was  ill-used ;  "v\ntness  saw  him  there  only  once ; 
he  seemed  aggrieved  about  Conroy 's  conduct;  witness  thinks 
Hill  was  unduly  influenced  by  the  Connor  family;  there  was 


Estate  of  Hill.  397 

too  much  cajolery,  in  the  opinion  of  witness,  more  than  could 
be  paid  for  by  so  much  a  month;  Hill  was  very  well  taken 
care  of;  there  was  so  much  done  to  make  him  happy,  there 
seemed  to  be  something  behind  that  witness  couldn't  explain 
exactly. 

Miss  Mary  E.  Morrison,  a  school  teacher,  an  intimate  friend 
and  frequent  visitant  at  the. home  of  Mrs.  Connor,  saw  Hill 
often  while  there ;  never  saw  him  under  the  influence  of 
liquor;  thought  he  was  mentally  sane,  because  he  talked  to 
her  so  lucidly;  he  discussed  political  issues  and  seemed  well 
informed;  Hill  improved  very  greatly  in  the  Connor  house; 
when  he  first  came  he  was  not  so  cheerful  as  he  afterward 
became ;  he  grew  stout ;  he  told  witness  that  at  one  time  he 
wanted  to  put  a  pistol  to  his  head  and  Woolley  put  one  in 
his  hand,  and  Master  Conroy  corroborated  this  stqgtement. 

Mrs.  Ann  Hennings,  another  intimate  friend  of  the  Con- 
nor household,  testified  to  same  effect  as  to  sanity  of  Hill. 

Chas.  H.  Middleton,  as  to  will  of  November  13,  1884,  tes- 
tified that  he  witnessed  the  mark,  and  Hill  was  mentally  sane 
at  the  time;  witness  lived  in  the  same  house,  and  saw  much 
of  *Hill  and  conversed  with  the  old  man ;  for  the  last  five 
weeks  of  Hill's  life  witness  was  with  him  night  and  day,  ex- 
cept two  nights,  when  witness  was  relieved. 

Dr.  M.  A.  Cachot  visited  Hill  for  the  first  time  on  May  20, 
1885,  made  in  all  thirteen  or  fourteen  visits;  the  patient  al- 
ways answered  promptly  and  to  the  point  all  questions;  wit- 
ness never  saw  any  sign  of  insanity  in  him;  he  was  sane; 
witness  was  family  physician  of  the  Connors,  is  a  graduate 
of  college,  at  one  time  in  charge  of  St.  Mary's  Hospital;  Hill 
was  not  suffering  from  alcoholism  when  witness  saw  him ;  bore 
no  symptoms  of  alcoholism. 

Dr.  S.  R.  Gerry,  a  thirty-six  years'  practitioner  in  San 
Francisco,  a  physician  since  1839,  knew  Hill  in  the  Almshouse, 
of  which  institution  witness  is  and  was  resident  physician; 
Hill  had  amaurosis,  paralysis  of  the  optic  nerve;  otherwise 
he  was  in  good  corporal  condition ;  had  frequent  conversa- 
tions with  him,  reminiscences  of  Mexican  War  and  topics 
like  that ;  afterward  witness  visited  Hill  on  Chestnut  street 
about  twice,  two  or  three  years  ago;  in  the  Almshouse  pre- 


398  Coffey's  Probate  Decisions,  Vol.  1. 

scribed  occasionally  a  little  whisky  and  brandy  for  him,  not 
regularly  or  continuously ;  Hill  was  in  the  Almshouse  ten 
or  twelve  years;  he  was  bright  and  intelligent,  mentally  sane 
at  all  those  times;  witness  based  his  opinion  on  the  general 
tenor  of  Hill's  conversation;  he  was  a  very  tractable  patient, 
easily  governed,  but  he  had  a  strong  will  of  his  own,  as  wit- 
ness judged  from  his  positive  manner;  witness  didn't  think 
that  he  was  easily  influenced. 

Dr.  L.  L.  Dorr,  a  physician  and  surgeon,  first  met  Hill  be- 
fore the  pension  board,  of  which  witness  was  a  member,  in 
1880;  afterward  in  1882  for  a  half  hour,  perhaps,  treated 
Hill  for  some  ailment  of  the  bowels ;  conversed  with  him  on 
his  physical  condition,  about  his  blindness;  this  was  July  18, 
1882 ;  he  was  perfectly  sane ;  if  he  were  not  sane  in  the  ex- 
aminatioi^  before  the  pension  board,  witness  would  so  report. 
Witness  said  a  person  suffering  from  chronic  alcoholism  might 
be  competent  to  make  a  will. 

Miss  Maggie  E.  McCann  repeated  substantially  her  testi- 
mony as  to  execution  of  will  of  March  22,  1884;  she  knew 
Hill  all  the  time  he  was  at  her  mother's  house,  of  which  wit- 
ness was  an  inmate ;  conversed  with  him  frequently ;  he  spoke 
of  Mr.  Woolley,  said  he  tried  to  beat  him  once  on  Langton 
street,  and  Conroy  saved  him,  and  that  was  the  reason  he 
liked  the  boy;  at  the  time  of  the  execution  of  the  will  of 
March  22,  1884,  Hill  asked  Haven  if  he  would  accept  any- 
thing, and  Haven  said:  "I  don't  wish  any  of  your  money; 
don't  need  it."  On  November  13,  1884,  Hill  was  sane  in 
witness'  opinion. 

Dr.  Julian  Perrault,  physician  and  surgeon  in  San  Fran- 
cisco since  1859,  saw  Hill  September  25,  1882;  treated  him 
for  quite  a  severe  injury  to  the  arm ;  thought  Hill  had  been 
drinking  too  much ;  Hill  was  rather  an  intelligent  old  man, 
and  witness  sometimes  chatted  with  him  when  time  permitted ; 
never  saw  him  intoxicated;  he  was  an  old  soldier,  and  wit- 
ness thought  his  condition  required  stimulants,  and  witness 
allowed  him  a  certain  quantity  of  whisky;  Hill  was  a  man 
of  strong  will  and  good  understanding;  there  was  nothing 
about  him  to  indicate  chronic  alcoholism  when  witness  saw 
him;   the   quantity   of   liquor   witness   prescribed   would   be 


Estate  of  Hill.  399 

about  two  gallons  a  month;  the  first  night  witness  saw  Hill 
he  was  suffering  from  acute  alcoholism — that  is,  the  result 
of  one  debauch;  whether  three  gallons  a  month  would  be 
too  much  liquor  would  depend  on  a  man's  physical  organiza- 
tion; some  men  can  stand  that  much  without  injury. 

James  H.  Adams  knew  Hill  in  1846,  a  fellow-soldier;  had 
the  care  of  Hill  on  Guerrero  street  and  on  Vallejo  street; 
he  was  correct  in  his  habits;  after  Woolley  came  the  quan- 
tity of  whisky  was  greatly  increased;  Woolley  drank  and 
others,  outsiders;  Hill  was  very  generous  and  liked  to  treat 
his  friends  well;  he  was  never  intoxicated  before  Woolley 
came ;  never  under  the  influence  of  liquor ;  afterward  wit- 
ness saw  Hill  intoxicated,  sometimes  very  far  gone;  always 
considered  Hill  perfectly  sane ;  he  was  as  clear  and  level- 
headed as  any  man  witness  ever  had  to  do  with ;  witness  was 
with  Hill  six  w^eeks ;  four  weeks  before  Woolley  came,  and 
two  weeks  after  that  event. 

Wm.  Kane  worked  for  Hill  two  days  and  a  night,  and 
lived  hard-by  Hill  on  Langton  street  for  about  two  months; 
went  there  after  Woolley  left;  Hill  wasn't  very  clean;  clothes 
old  and  shabby ;  no  shoes  on ;  wore  slippers  when  we  took  him 
to  Mrs.  Connor's;  Hill  was  afraid  of  Woolley 's  coming  back; 
witness  remained  to  protect  him  as  much  as  anything  else; 
Hill  told  witness  to  throw  Woolley  out  if  he  came  back. 

Eugene  McCarthy  took  care  of  Hill  from  May  1,  1884,  until 
his  decease;  attended  on  him,  gave  him  a  tablespoonfiil  of 
whisky  when  he  wanted  it;  used  to  read  to  him  and  wait 
on  him;  witness  has  been  at  Mrs.  Connor's  about  three  years; 
Hill  paid  him  same  as  Conroy,  fifteen  dollars  per  month  ;*saw 
Hill  intoxicated  three  times — Decoration  Day,  his  birthday, 
and  Fourth  of  July. 

W.  H.  Aiken  testified  as  to  his  relations  with  Hill,  and 
gave  his  opinion  that  he  was  sane  at  all  times,  remarkal)le 
memory,  and  acute  hearing  and  sensible  conversation  were 
characteristics  of  Hill ;  he  could  tell  a  person  by  his  step ; 
was  very  bright  and  intelligent. 

John  Hogan,  a  resident  in  the  Connor  house,  testified  sub- 
stantially the  same  as  other  inmates  therein,  who  saw  Hill 
frequently  and  conversed  with  him. 


400  Coffey's  Probate  Decisions,  Vol.  1. 

Mrs.  Mary  E.  Connor  testified  that  she  was  the  person 
mentioned  by  that  name  in  the  instruments  propounded ;  she 
became  acquainted  with  Hill  on  Langton  street;  called  there 
with  the  sister  of  Conroy  to  see  Hill ;  Mr.  Woolley  was  there 
and  said  he  was  going  to  leave ;  Hill  complained  of  Woolley ; 
said  he  could  drink  more  than  himself ;  could  take  beer  three 
or  four  times  a  day,  and  whisky  in  the  morning;  Hill  was 
neat  and  intelligent;  had  taste  for  reading,  and  liked  per- 
sons to  read  for  him  newspapers  and  books;  liked  music 
greatly;  was  perfectly  sane;  he  didn't  want  to  see  Woolley; 
didn  't  want  him  in  the  house ;  didn  't  think  it  right  that  Wool- 
ley  brought  his  family  to  live  on  him,  and  to  make  him  sup- 
port them ;  she  felt  friendly  toward  Woolley. 

James  M.  Haven  testified  that  he  was  the  executor  named 
in  instrument  dated  March  22,  1884;  Hill  told  him  he  was 
never  married;  witness  became  acquainted  with  Hill  in  Jan 
uary,  1883 ;  was  introduced  by  special  treasury  agent  Magan, 
in  Vallejo  street,  when  Conroy  and  Mrs.  Clark  had  charge 
of  Hill;  after  the  Woolley  family  came,  Hill  complained  of 
the  circumstances,  and  of  what  Woolley 's  wife  once  said 
when  Hill  spoke  of  the  noise  made  by  the  children;  Mrs. 
Woolley  said  she  wished  "his  old  carcass  was  at  the  bottom 
of  the  bay ' ' ;  once  when  witness  was  present  Woolley  and 
Hill  had  very  rough  talk ;  Woolley  said  he  couldn  't  stay  with 
Hill,  nor  could  anybody  else;  afterward  Woolley  came  to 
witness'  office  and  said  he  couldn't  stay  longer  with  Hill, 
because  Hill  abused  him,  called  him  vile  names  and  so  on ; 
the  next  day  after  Woolley  left,  Hill  was  removed  to  Mrs. 
Connor's  house;  witness  selected  the  place  and  caused  the 
removal,  and  Hill  was  content  to  go  there ;  after  that  he  im- 
proved verj^  greatly ;  witness  was  with  him  when  he  died ; 
saw  him  for  two  hours  and  a  half  before ;  on  March  22,  1884, 
Hill  was  perfectly  sane;  as  to  the  instrument  called  the 
"Blood"  or  "Aiken"  will,  witness  made  the  pencil  marks 
at  the  direction  of  Hill,  when  he  was  giving  witness  instruc- 
tions for  drawing  the  will  of  March  22,  1884;  on  November 
13,  1884,  Hill  was  sane ;  he  acted  at  all  times  like  a  sane  man ; 
his  conversation  was  intelligent;  there  were  times  when  Hill 
was  under  the  influence  of  liquor  when  his  mind  was  not 


Estate  of  Hill.  401 

sound;  Hill  told  witness  that  Woolley  wanted  him  to  revoke 
the  "Blood-Aiken"  will.  Hill  told  witness  to  give  Wool- 
ley,  his  wife  and  children  $1  each;  witness  suggested  larger 
sums  for  the  wife  and  children,  saying  he  didn't  think  they 
should  suffer  for  Woolley 's  wrongdoing,  but  Hill  said,  "No, 
I'll  give  them  but  a  dollar  apiece."  Hill  was  not  a  man 
easily  susceptible  to  influence;  it  was  very  hard  to  influence 
him;  witness  never  said  that  if  Hill  didn't  do  as  he  wished, 
he  w^ould  put  him  in  a  lunatic  asylum;  but  did  insist  on 
Hill's  leaving  Vallejo  street,  and  getting  into  a  better  locality. 

H.  J.  Stafford,  a  justice  of  the  peace  of  San  Francisco, 
and  an  attorney  at  law,  knew  Hill;  met  him  two  or  three 
times  before  last  election  (1884)  ;  had  conversation  with  him 
on  general  topics;  upon  politics  so  far  as  it  was  safe  for 
witness  to  venture;  Hill  was  very  radical  in  his  views,  and 
witness,  being  of  opposite  opinions,  didn't  think  it  prudent 
to  pursue  such  discussions;  Hill  was  sane;  there  was  noth- 
ing about  him  to  indicate  insanity,  and  witness  never  had  a 
suspicion  of  Hill's  sanity;  he  was  a  man  of  very  strong 
convictions  and  wanted  to  argue;  ready  for  argument;  clear 
and  logical   in   his   processes   of   reasoning. 

The  foregoing  is  a  fair  view  of  the  substance  of  the  testi- 
mony on  both  sides. 

So  far  as  the  execution  of  the  documents  propounded  are 
concerned,  they  are  both  executed  in  all  particulars  conform- 
ably to  the  statute :  Civ.  Code,  sees.  1276,  1278. 

The  case  of  the  contestant  with  respect  to  the  soundness 
of  mind  of  the  testator  is  not  established ;  the  great  prepond- 
erance of  evidence  being  that  he  was  at  all  times — when  not 
under  the  influence  of  liquor — intelligent,  clear  and  strong 
in  mental  faculties,  with  a  retentive  memory  and  a  positive 
will ;  the  physicians  particularly  are  upon  this  point  plain- 
spoken.  Doctors  Cachot,  Perrault,  Gerry  and  Dorr  saw 
much  of  him,  and  speak  with  precision  and  emphasis;  Doc- 
tors Foster  and  Whitney  each  but  once,  and  under  circum- 
stances not  so  favorable  as  the  others  for  absolute  judgment 
All  these  gentlemen  are  in  good  professional  standing,  and 
entitled  to  credence  and  respect;  but  the  conditions  under 
which  the  two  last  named  saw  their  patient  dift'er  from  the 

Prob.  Dec,  Vol.  1—26 


402  Coffey's  Probate  Decisions,  Vol.  1. 

others  to  such  an  extent  as  to  render  their  testimony  much 
less  valuable;  and  their  testimony  as  experts  is  entitled  to 
no  greater  consideration  than  that  of  the  other  physicians 
who  oppose  their  opinions.  I  do  not  think  any  other  con- 
clusion can  fairly  be  drawn  from  the  evidence  than  that 
Thomas  J.  Hill  was  a  man  of  sound  mind.  Even  if  at  times 
vacillating  and  vagarious,  as  the  witness  Lynch  and  Post  in 
substance  said,  and  other  witnesses  on  the  same  point  cor- 
roborated, the  general  tenor  of  their  testimony  supports  the 
theory  of  sanity;  Barthrop,  James  Hill,  James  H.  Adams 
and  John  Hogan  are  clear  upon  this  question,  and  they  saw 
the  decedent  frequently  during  his  latter  years;  two  of  them 
— Barthrop  and  Adams — being  his  comrades  in  the  Mexican 
War;  in  addition  is  the  evidence  of  Miss  Morrison  and  Mrs. 
Hennings,  which  is  assailed  as  interested;  but  the  nature  of 
their  interest  is  not  such  as  to  discredit  them;  that  they  are 
''friends  of  the  family"  is  not  of  itself  sufficient  to  justify  a 
judge  or  jury  in  rejecting  their  testimony.  I  do  not  deem  it 
necessary  to  advert  further  to  the  testimony  upon  this  point, 
an  abstract  of  which  I  have  endeavored  to  make  in  the  pre- 
ceding pages;  nor  is  it  necessary  to  quote  here  long  defini- 
tions of  soundness  or  sanity  of  mind,  in  order  to  show  how 
far  short  contestant's  proofs  fall  in  establishing  his  al- 
legation. I  shall  only  cite:  Estate  of  Black,  Myr.  27,  28; 
1  Redfield  on  Wills,  59,  60  et  seq. ;  1  Jarman  on  Wills,  103 ; 
Estate  of  Crittenden,  Myr.  51;  1  Redfield  on  Wills,  pp.  84, 
85;  Estate  of  Tittel,  Myr.  12. 

The  testator  seems  to  have  had  some  reason  arising  from 
his  nephew's  conduct  for  his  antipathy  toward  him;  the  evi- 
dence of  Kane  and  Post  is  clear  upon  this  point,  the  latter 
especially  strong,  and  there  is  other  testimony  to  same  pur- 
port, and  explaining  this  fact  as  the  secret  of  Hill's  affec- 
tion for  the  erratic  youth,  Conroy.  Belief  based  on  evi- 
dence, however  slight,  is  not  delusion.  The  testator's  mind 
was  not  "possessed"  in  this  particular:  Estate  of  Tittel,  Myr. 
14. 

As  to  the  allegation  of  habitual  inebriety,  while  it  appears 
.that  the  decedent  was  profound  in  his  potations,  it  is  not 
established  that  his  habits  so  impaired  his  mind  as  to  inca- 
pacitate him  from  making  a  will  at  the  times  of  the  execution 


Estate  of  Hell.  403 

of  these  instruments.  Notwithstanding  his  frequent  and 
copious  indulgence  in  liquor,  without  which  he  declared  life 
not  worth  living,  he  seems  to  have  retained  an  intelligence 
and  an  interest  in  human  affairs  that  made  him  to  many 
persons  an  entertaining  companion.  Mr.  Post  spent  hours 
with  him,  and  others  visited  him  on  account  of  his  agreeable 
converse.  The  testimony  of  the  physicians,  Gerry,  Perrault, 
Cachot  and  Dorr,  is  certainly  worth  considering,  with  their 
knowledge  of  Hill's  habits.  Upon  this  issue  the  Estate  of 
Black,  Myr.  27  et  seq.,  is  very  instructive;  and  the  work 
of  Balfour  Bro\^^le  on  the  Medical  Jurisprudence  of  In- 
sanity, sections  351-360,  and  Dr.  Ordronaux's  Judicial  As- 
pects of  Insanity,  382,  may  be  consulted  with  profit.  The 
case  of  Peck  v.  Carey  27  N.  Y.  9,  84  Am.  Dec.  220,  should 
also  be  read.  Julke  v.  Adam  1  Redf.  456,  and  O'Neill  v. 
Murray,  4  Redf.  318,  are  good  cases  in  support  of  these 
views;  and  it  is  not  necessary  to  add  to  those  cited. 

Was  either  will  made  under  undue  influence'?  Civ.  Code, 
sees.  1272,  1575. 

Counsel  for  contestant  made  strenuous  contention  that  the 
circumstances  surrounding  Hill,  at  the  time  of  the  execution 
of  those  instruments,  were  such  as  to  carry  the  inference 
that  the  wills  were  not  the  offspring  or  emanation  of  the 
mind  of  the  testator;  but  that  the  craft  of  Counselor  Haven, 
the  arts  and  artifices  of  Aiken,  and  the  manner  in  which  he 
practiced  upon  the  susceptible  nature  and  the  guileless  heart 
of  Hill,  the  subtle  influence  of  the  presiding  genius  of  the 
Connor  household,  "the  fairy  godmother  of  the  boy  Con- 
roy,"  Miss  Maggie  McCann,  over  the  blind  paralytic,  and 
the  whole  atmosphere  of  undue  influence  surrounding  Hill, 
produced  the  wills,  by  which  comparative  strangers  acquire 
his  estate  to  the  disherison  of  the  next  of  kin.  But  it  does  not 
appear  that  there  were  such  ties  between  WooUey  and  Hill 
as  should  raise  a  presumption  of  obligation  on  testator '=? 
part  to  him;  his  life  with  Woolley  was  on  the  whole  not  a 
happy  one;  and  there  was  a  great  change  when  the  transfer 
was  made  to  the  Connor  house ;  the  last  days  of  his  life  were 
made  cheerful ;  and  in  this  all  the  witnesses  agree  who  visited 
Hill  at  his  home  with  that  family.  Whatever  the  motive, 
it  was  the  fact  that  Hill  benefited  bodily  and  mentally  by 


404  Coffey's  Probate  Decisions,  Vol.  1. 

the  change.  I  think  a  careful  examination  of  the  facts  in 
evidence  will  fail  to  substantiate  the  averments  of  contest- 
ant that  the  will  was  procured  to  be  made  by  undue  in- 
fluence; and  it  will  not  do  to  base  a  conclusion  upon  sur- 
mises and  suspicions  of  sordid  motives  for  kind  acts,  where 
there  is  no  direct  evidence  to  fortify  such  deduction.  As 
to  what  constitutes  "undue  influence,"  the  counsel  must  be 
content  with  citations,  as  everything  (even  a  judicial  opin- 
ion) must  have  an  end.  Judge  Myrick's  valuable  probate 
reports  furnish  excellent  and  convenient  definitions  and  illus- 
trations and  references :  Estate  of  Black,  Myr.  31 ;  1  Jar- 
man  on  Wills,  132-134;  1  Redfield  on  Wills,  518-520;  Chil- 
dren's Aid  Soc.  V.  Loveridge,  70  N.  Y.  387. 

The  opinion  of  Miller,  J.,  in  this  last  cited  case  is  worthy 
of  perusal :  See  1  Jarman  on  Wills,  141 ;  1  Redfield  on  Wills, 
523,  524. 

The  allegations  of  undue  influence  are  not  established,  and 
the  like  remark  may  be  made  with  respect  to  the  charges 
of  fraud:  Civ.  Code,  1575.  Lack  of  time  and  pressure  of 
other  duties  compel  me  to  abbreviate  the  discussion  of  the 
principles  involved  in  this  case,  and  to  refer  counsel  to  the 
summary  of  the  evidence  to  support  the  court's  conclusion 
that  the  wills  should  be  admitted  to  probate.  Let  an  order 
to  that  eft'ect  be  prepared :  1  Redfield  on  Wills,  *435. 


As  to  What  Undue  Influence  will  vitiate  a  will,  see  Estate  of  In- 
gram, ante,  p.  122,  and  note. 

The  Appointment  of  a  Guardian  for  a  Person  alleged  to  be  non 
compos  mentis,  by  a  court  having  jurisdiction,  is  perhaps  prima 
facie,  but  certainly  not  conclusive  evidence  of  his  lack  of  testa- 
mentary capacity:  Estate  of  Johnson,  57  Cal.  529;  Ames  v.  Ames, 
40  Or.  495,  67  Pac.  737. 

One  may  Place  Himself  so  Far  Under  the  Influence  of  Intoxicating 
Liquor  that  for  the  time  being  he  cannot  do  any  legal  act,  or  he  may, 
by  an  excessive  use  of  alcoholic  stimulants  for  an  extended  period 
of  time,  perhaps  permanently  dethrone  his  reason.  A  person  may, 
therefore,  by  an  inordinate  indulgence  in  intoxicants,  temporarily 
and  possibly  permanently  incapacitate  himself  to  make  a  will.  Yet 
the  fact  that  one  is  addicted  to  the  excessive  use  of  liquor,  or  that 
he  is  in  some  measure  under  its  influence,  manifestly  does  not,  as 
a  matter  of  law,  establish  a  want  of  testamentary  capacity.  Never- 
theless, such  inebriety  is  always  admissible  in  evidence  as  tending  to 


Estate  of  Skae,  405 

show  unsoundness  of  mind,  or  vulnerability  to  undue  influence,  its 
effect  being  a  question  of  fact  for  the  jury:  Estate  of  Tiffany,  post, 
p.  478;  Estate  of  Cunningham,  52  Cal.  465;  Estate  of  Gharky,  57 
Cal.  271;  Estate  of  Johnson,  57  Cal.  529;  Estate  of  Lang,  65  Cal. 
19,  2  Pae.  491;  Estate  of  Wilson,  117  Cal.  262,  49  Pac.  172;  In  re 
D 'Avignon's  Will,  12  Colo.  App.  489,  55  Pac.  936;  Estate  of  Van 
Alstine,  26  Utah,  193,  72  Pac.  942;  Estate  of  Eathjens,  45  Wash.  55, 
87  Pac.  1070. 


Estate  of  ALICE  SKAE,  Deceased. 

[No.  29,150;   decided  February  15,   1905.] 

Equitable  Conversion — Whether  Takes  Place  by  Implication. — Equi- 
table conversion  may  take  place  by  implication  as  well  as  by  express 
words. 

Equitable  Conversion — When  Worked  by  Implication. — If  a  will  au- 
thorizes the  executors  to  sell  real  estate,  and  the  general  scheme  of 
the  testament  manifests  an  intention  on  the  part  of  the  testator 
tnat  there  shall  be  an  equitable  conversion  of  the  realty  into  per- 
sonal property,  such  a  conversion  will  take  place,  although  the  power 
to  sell  is  not  imperative. 

1.  Application  for  partial  distribution  by  Alice  Warren 
Skae,  sole  heir  at  law.  Opposition  by  Mercantile  Trust 
Company. 

2.  Application  for  final  distribution  by  Mercantile  Trust 
Company  of  San  Francisco,  testamentary  trustee.  Oppo- 
sition by  Alice  Warren  Skae. 

Wilson  &  Wilson,  for  heir,  cited  the  following  authorities: 
Civ.  Code,  sees.  857,  864,  1384;  Carpenter  v.  Cook,  182  Cal 
621,  84  Am.  St.  Rep.  118,  64  Pac.  997 ;  Morfew  v.  San  Fran- 
cisco &  S.  R.  R.  Co.,  107  Cal.  595,  596;  Estate  of  Fair,  132 
Cal.  523,  546,  84  Am.  St.  Rep.  70,  60  Pac.  442,  64  Pac.  1000 ; 
Cooke  V.  Piatt,  98  N.  Y.  35 ;  Chamberlain  v.  Taylor,  105  N. 
Y.  185,  194,  11  N.  E.  625;  Henderson  v.  Henderson,  113  N. 
Y.  11,  20  N.  E.  814;  Woerz  v.  Rademacher,  120  N.  Y.  62, 
23  N.  E.  1113;  Steinhardt  v.  Cunningham,  130  N.  Y.  292, 
29  N.  £.  100;  Hofsas  v.  Cummings,  141  Cal.  525,  75  Pac. 
110;  McCurdy  v.  Otto,  140  Cal.  50,  73  Pac.  748;  Estate  of 
Walkerly,  108   Cal.  627,  628,  652,  49  Am.  St.  Rep.  97,  41 


406  Coffey's  Probate  Decisions,  Vol.  1. 

Pac.  772;  Estate  of  Young,  123  Cal.  343,  55  Pac.  1011; 
Estate  of  Sanford,  136  Cal.  100,  68  Pac.  494;  Estate  of 
Dixon,  143  Cal.  511,  77  Pac.  412 ;  Estate  of  Pichoir,  139  Cal. 
684,  73  Pac.  606 ;  Estate  of  Fair,  136  Cal.  79,  68  Pac.  306 ; 
Am.  &  Eng.  Ency.  of  Law,  1st  ed.,  p.  510,  and  cases  cited; 
Janes  v.  Throckmorton,  57  Cal.  368,  383;  Bank  of  Ukiah 
V.  Eice,  143  Cal.  270,  271,  101  Am.  St.  Rep.  118,  76  Pac 
1020;  Scholle  v.  Scholle,  113  N.  Y.  270,  21  N.  E.  84;  Clift 
V.  Moses,  116  N.  Y.  157,  22  N.  E.  393 ;  Eraser  v.  McNaugh- 
ton,  58  Hun,  31,  11  N.  Y.  Supp.  384;  White  v.  Howard,  46 
N.  Y.  162;  Estate  of  Pforr,  144  Cal.  121,  77  Pac.  826; 
Crouse  v.  Peterson,  130  Cal.  175,  80  Am.  St.  Rep.  89,  62 
Pac.  475,  615;  Estate  of  Lahiff,  86  Cal.  151,  24  Pac.  850; 
Fletcher  v.  Ashburner,  1  White  &  Tudor 's  Leading  Cases 
in  Equity,  part  2,  p.  1118  (and  eases  cited  on  p.  1134)  ;  2 
Story's  Equity  Jurisprudence,  sec.  1214;  1  Beach  on  Mod- 
ern Equity  Jurisprudence,  sec.  523 ;  Wheldale  v.  Partridge, 
5  Ves.  Jr.  *397,  and  note.  Walker  v.  Denne,  2  Ves.  Jr. 
*186;  Samuel  v.  Samuel,  4  B.  Mon.  (Ky.)  253,  254;  King 
V.  King,  13  R.  I.  501;  Becker's  Estate,  150  Pa.  526,  24  Atl. 
687;  Mills  V.  Harris,  104  N.  C.  629,  10  S.  E.  704;  Tickel 
V.  Quinn,  1  Dem.  (N.  Y.  Sur.)  428;  Keller  v.  Harper,  64 
Md.  82,  1  Atl.  65;  Lynn  v.  Gephart,  27  Md.  563. 

Morrison  &  Cope,  for  trustee,  cited  the  following  authori- 
ties: Civ.  Code,  sec.  1338;  In  re  Pforr 's  Estate,  144  Cal. 
121,  77  Pac.  827 ;  Dodge  v.  Pond,  23  N.'  Y.  69 ;  Dodge  v. 
Williams,  46  Wis.  97,  50  N.  W.  1103,  1106 ;  Bogert  v.  Her- 
tell,  4  Hill,  492-497,  and  cases  cited;  Ford  v.  Ford,  70  Wis 
19 ,  5  Am.  St.  Rep.  117-124,  33  N.  W.  188 ;  Lent  v.  Howard, 
89  N.  Y.  169,  177 ;  Moncrief  v.  Ross,  50  N.  Y.  431-436 ; 
Doughty  V.  Bull,  2  Wms.  430;  Delafield  v.  Barlow,  107  N. 
Y.  535,  14  N.  E.  498 ;  Morse  v.  Morse,  85  N.  Y.  53,  59 ;  Allen 
V.  Watts,  98  Ala.  384,  11  South.  646;  Harrington  v.  Pier, 
105  Wis.  485,  76  Am.  St.  Rep.  924,  82  N.  W.  345,  50  L.  R. 
A.  307,  313 ;  Given  v.  Hilton,  95  U.  S.  591,  24  L.  Ed.  458 : 
Power  V.  Cassidy,  79  N.  Y.  602,  613,  35  Am.  Rep.  550; 
Clarke  v.  Clarke,  46  S.  C.  230,  57  Am.  St.  Rep.  675,  24  S. 
E.  202,  205-207 ;  Eraser  v.  Trustees  U.  P.  Church,  124  N.  Y. 
479,  26  N.  E.  1034;  Cherry  v.  Greene,  115  111.  591,  4  N.  E. 


Estate  of  Skae.  407 

257;  Going  v.  Emery,  16  Pick.  (33  Mass.)  107,  112,  113, 
26  Am.  Dec.  645;  Wurt's  Exrs.  v.  Page,  19  N.  J.  Eq.  365, 
375 ;  Falmestock  v.  Fahnestock,  152  Pa.  56 ,  34  Am.  St.  Kep. 
623,  25  Atl.  313 ;  Chick  v.  Ives,  2  Neb.  (Unofficial)  879,  90 
N.  W.  751,  and  authorities  therein  cited;  Becker  v.  Chester, 
115  Wis.  90,  117-126,  91  N.  W.  87,  97-100,  650. 

COFFEY,  J.  Alice  Warren  Skae  is  the  only  child,  and 
sole  heir  at  law  of  Alice  Skae,  decedent,  who  died  in  New 
York  City  on  the  sixth  day  of  July,  1903,  leaving  estate, 
real  and  personal,  in  San  Francisco  and  elsewhere,  which 
she  sought  to  dispose  of  by  a  will  admitted  to  probate  pri- 
marily in  the  New  York  county  surrogates'  court  and  by 
authenticated  copy  subsequently  in  this  jurisdiction  on  Sep- 
tember 12,  1903,  wherein  letters  testamentary  were  issued 
to  Mercantile  Trust  Company  of  San  Francisco,  a  corpora- 
tion, which  thereupon  qualified  as  executor  and  ever  since 
has  acted  and  now  is  acting  in  that  capacity.  The  jurisdic- 
tional facts  being  established,  Alice  Skae,  as  heir  at  law,  asks 
that  certain  property  described  in  her  petition  be  distributed 
to  her. 

The  executor  resists  this  application  and  avers  that  the 
property  described  was  disposed  of  by  testatrix  in  and  by 
her  will,  admitted  to  probate  as  aforesaid,  which  made  a 
complete  distribution  of  all  her  property  in  trust  as  follows: 
To  the  said  Mercantile  Trust  Company  of  San  Francisco  in 
trust  to  receive  the  rents,  income  and  profits  thereof,  and 
to  pay  therefrom  the  proper  and  necessary  expenses  of 
managing  and  caring  for  said  property  and  of  putting  and 
keeping  in  repair  the  burial  vault  owned  by  said  deceased 
in  the  cemetery  at  Oakland  and  a  proper  compensation  for 
its  services  as  trustee  and  to  apply  the  balance  of  such  rents, 
income  and  profits  to  the  use  of  said  Alice  W.  Skae,  during 
her  natural  life,  with  authority  in  said  trustee  to  sell,  at 
public  or  private  sale,  the  whole  or  any  part  of  the  real  es- 
tate of  the  decedent  and  the  proceeds  to  invest  for  the  pur- 
poses of  said  trust;  also  to  lease  the  real  estate  and  mort- 
gage the  same  to  secure  any  loan  required  to  pay  an  exist- 
ing mortgage  thereon  or  to  rebuild  or  improve  the  buildings 
thereon;  and  after  the  decease  of  the  said  daughter,  Alice 


V 


408  Coffey's  Probate  Decisions,  Vol.  1. 

Warren  Skae,  the  decedent  testatrix  directed  the  said  trus- 
tee to  pay  out  of  the  principal  of  said  trust  fund  the  sum  of 
$50,000  to  the  lawful  husband  of  said  daughter,  who  should 
survive,  if  any,  and  to  distribute  the  remainder  among  her 
children,  who  should  survive  her,  if  any,  it  being  understood 
that  the  issue  of  a  deceased  child  should  take  together  the 
share  per  stirpes  which  such  child  would  have  taken,  if  he  or 
she  had  survived  said  daughter  of  testatrix ;  and  in  case  said 
Alice  "Warren  Skae  should  leave  no  issue,  then  the  testatrix 
directed  that  the  trustee  should  out  of  the  trust  property 
which  would  have  gone  to  such  issue,  if  any  had  survived, 
pay  certain  gifts  to  and  for  certain  persons  and  purposes 
and  then  to  divide  the  remainder  among  indicated  individ- 
uals. 

In  order  to  arrive  at  the  intention  of  the  testatrix  it  may 
be  better  to  reproduce  here  the  language  of  the  will,  for  the 
rule  is,  as  stated  by  our  supreme  court,  to  ascertain  the 
meaning  of  the  writer  by  the  terms  he  employs  to  signify 
his  purpose.  It  is  not,  what  did  he  mean?  but,  what  do  his 
words  mean  ?  Estate  of  Fair,  132  Cal.  546,  84  Am.  St.  Rep. 
70,  60  Pac.  442,  64  Pac.  1000. 

The  first  item  of  the  will  need  not  be  rendered  literally, 
as  it  was  revoked  by  the  codicil ;  but  the  subsequent  para- 
graphs will  be  better  understood  if  given  in  their  exact 
phrase  than  by  abstract  or  synopsis.  These  items  are  as  fol- 
lows, in  their  order: 

Item — "I  give,  devise  and  bequeath  all  the  rest,  residue 
and  remainder  of  my  property  and  estate,  real  and  personal, 
of  which  I  may  die  seized  or  possessed,  or  to  which  I  may 
be  in  any  wise  entitled  at  the  time  of  my  decease,  unto  the 
Mercantile  Trust  Company  of  San  Francisco,  California,  in 
trust,  to  receive  the  rents,  income  and  profits,  thereof,  and 
to  pay  therefrom  the  proper  and  necessary  expenses  of 
managing  and  caring  for  said  property  and  a  proper  com- 
pensation for  its  services  of  Trustee,  and  to  apply  the  bal- 
ance of  such  rents,  income  and  profits  to  the  use  of  my 
daughter  Alice  Warren  Skae  during  her  natural  life. 

"I  authorize  and  empower  the  said  Trustee  to  sell  at  pub- 
lic or  private  sale,  the  whole  or  part  of  my  real  estate  and 
the  proceeds  to  invest  for  the  purposes  of  said  trust.     Also 


Estate  of  Skae.  409 

to  lease  my  real  estate  and  to  mortgage  the  same  to  secure 
any  loan  which  may  be  reasonably  required  to  pay  off  an 
existing  mortgage  thereon,  or  to  rebuild  and  improve  the 
buildings  thereon. 

"After  the  decease  of  my  daughter  Alice  Warren  Skae, 
I  direct  that  said  Trustee  pay  out  of  the  principal  of  said 
Trust  Fund,  the  sum  of  Fifty  thousand  dollars  to  the  law- 
ful husband  of  said  Alice  Warren  Skae,  who  shall  survive 
her,  if  any,  and  to  distribute  the  remainder  of  said  Trust 
property  among  the  children  of  said  Alice  Warren  Skae, 
who  shall  survive  her,  if  any,  it  being  understood  that  the 
issue  of  a  deceased  child  of  said  Alice  Warren  Skae  shall 
together  take  the  share  per  stirpes  which  said  deceased  child 
would  have  taken,  if  he  or  she  had  survived  said  Alice  War- 
ren Skae." 

Item — "In  case  my  daughter  Alice  Warren  Skae  shall 
leave  no  issue  of  her  body  her  surviving,  then  I  direct  that 
the  said  Trustee  shall  out  of  the  said  Trust  property  which 
would  have  gone  to  such  issue,  if  any  had  survived,  pay  the  fol- 
lowing gifts,  viz":      (Naming  persons  and  objects.) 

Item — "After  all  the  preceding  gifts  shall  be  fully  paid 
so  far  as  may  be  lawful  or  possible,  I  direct  the  said  Trus- 
tee to  divide  all  the  residue  which  shall  then  remain  of  said 
Trust  property  (including  all  gifts  that  may  lapse,  and  the 
sum  given  in  trust  for  Mary  Skae,  after  the  termination  of 
said  trust)  unto  and  among  the  following  named  persons, 
viz  " :     .( Naming  them. ) 

The  property  of  this  estate,  according  to  the  inventory  and 
appraisement  filed  June  30,  1904,  was  in  personalty  valued 
at  .$31,427.87  and  in  land  $150,000,  with  improvements  there- 
on $50,000.  So  far  as  this  discussion  is  concerned,  the  ac- 
tual status  of  the  property  at  this  date  may  be  considered 
as  realty,  amounting  in  value  to  $200,000. 

In  support  of  the  application  for  partial  distribution,  it 
is  conceded  that  the  trust  to  receive  the  rents,  income  and 
profits  and  to  apply  the  same  to  the  use  of  the  daughter 
during  her  natural  life  is  valid  unless  it  fail  by  reason  of 
the  invalidity  of  the  other  trusts,  which  are  claimed  to  be 
repugnant  to  the  statute.  The  trust  for  the  husband  is 
assailed  as  clearly  void  under  section  857  of  the  Civil  Code, 


410  Coffey's  Probate  Decisions,  Vol.  1. 

and  not  authorized  by  any  of  its  subdivisions.  Subdivision 
1  provides  for  a  trust  to  sell  real  property  and  apply  or 
dispose  of  the  proceeds  in  accordance  with  the  instrument 
creating  the  trust.  It  is  argued  that  in  this  case  there  is 
not  only  no  direction  that  the  real  estate  be  sold  and  the 
$50,000  paid  out  of  the  proceeds,  but  the  will  contains  no 
imperative  direction  whatever  that  the  real  estate  be  sold, 
and  a  trust  under  this  subdivision  must  be  imperative  and 
mandatory  and  not  left  to  the  discretion  of  the  trustee,  and 
if  so  left,  it  is  not  a  trust  under  this  statute. 

The  second  subdivision  of  this  section  relates  to  trusts  to 
mortgage  or  lease  real  property  and  the  clause  concerning 
the  husband  is  not  within  its  purview. 

The  third  subdivision  relates  to  trusts  to  receive  the  rents 
and  profits  of  real  property  and  apply  them  to  the  use  of 
certain  persons.  This  provision  covers  the  trust  for  the 
benefit  of  the  daughter,  but  does  not  seem  to  have  any  bear- 
ing upon  the  clause  for  the  possible  surviving  husband  as 
that  is  not  to  receive  rents  and  profits  and  apply  the  same 
to  his  use  but  is  a  trust  to  pay  him  a  certain  sum  out  of  the 
principal. 

The  fourth  subdivision  provides  for  a  trust  to  receive  the 
rents  and  profits  of  real  property  and  to  accumulate  the 
same  for  certain  purposes,  and  has  no  application  to  the 
husband  trust. 

If  section  857  of  the  Civil  Code  be  depended  upon  to 
support  the  fifty  thousand  dollar  clause,  it  would  seem  as 
if  that  trust  provision  is  void. 

Following  the  clause  providing  for  the  husband  is  the  di- 
rection to  the  trustee  "to  distribute  the  remainder  of  said 
trust  property  among  the  children  of  said  Alice  Warren 
Skae,"  and  it  is  maintained,  on  her  behalf,  that  this  is  a 
trust  to  convey  real  property  and  is,  therefore,  void  under 
the  authorities,  since  the  property  would  not  vest  in  the 
children  on  the  death  of  the  mother,  and  it  would  be  neces- 
sary, under  this  trust,  for  the  trustee  to  convey  the  land  to 
them  and  such  an  act  is  inhibited  by  law.  The  only  trusts 
of  real  property  are  those  stated  in  section  857  of  the  Civil 
Code,  which  contains  no  alll^sion  to  trusts  "to  distribute." 


Estate  of  Skae.  411 

If  this  provision  is  to  be  construed  as  a  trust  to  convey, 
it  seems  to  be  the  settled  law  of  this  state  that  it  is  invalid, 
and  it  is  insisted  on  behalf  of  the  daughter  that  the  words 
"to  distribute,"  as  used  in  the  will,  are  the  equivalent  of 
"to  convey";  for,  it  is  said,  they  certainly  contemplate  that 
the  trustee  upon  her  death  shall  execute  a  conveyance  of 
the  remainder  of  the  trust  property  to  each  one  of  the  chil- 
dren then  living  and  the  issue  of  any  deceased  children;  for 
it  was  evidently  contemplated  that  there  might  be  a  number 
of  persons  who  would  be  entitled  to  the  trust  property  at 
the  death  of  the  daughter  and  the  testatrix  directs  the  trus- 
tee to  distribute  the  property  in  proper  proportions  to  each 
one  of  such  persons  and  it  is  not  easy  to  conceive  of  any 
method  of  carrying  out  this  direction  except  by  the  execu- 
tion of  a  conveyance. 

Section  864  of  the  Civil  Code  provides  that  the  author  of 
a  trust  may  prescribe  to  whom  the  property  shall  belong  on 
the  termination  of  the  trust,  but  it  is  contended  that  there 
is  no  such  prescription  when  there  is  a  plain  direction  to  the 
trustee  as  in  this  case. 

It  is  admitted  that  the  intent  of  the  testatrix  is  evident, 
but  the  courts  of  last  resort  have  ruled  that  this  intention 
is  immaterial  unless  the  disposition  be  valid.  If  the  trustee 
could  "distribute"  by  one  mode  only,  and  real  estate  must 
pass  by  conveyance  alone,  and  if  we  treat  this  trust  in  that 
class,  the  disposition  is  void.  It  is  asserted  on  authority 
that  the  will  containing  no  words  of  direct  devise,  which  are 
essential,  a  conveyance  to  the  children  from  the  trustee 
would  be  indispensable  to  transfer  title. 

The  trustee  submits  three  reasons  why  the  application  of 
the  daughter  should  be  denied  and  the  will  in  its  integrity 
be  sustained : 

1.  The  court  should  strive  to  sustain  rather  than  over- 
throw the  will;  it  should  be  industrious  to  carry  out  rather 
than  defeat  the  plain  purposes  of  the  testatrix,  and  to  pre- 
vent rather  than  create  intestacy. 

2.  There  is  no  trust  to  convey  in  this  will. 

3.  The  authority  given  to  the  trustee  to  sell  the  real  es- 
tate, coupled  with  the  other  provisions  of  the  will  showing 
the  intention  of  the  testatrix  that  the  property  should  be 


412  Coffey's  Probate  Decisions,  Vol.  1. 

distributed  as  personal  property  rather  than  real  estate,  is 
sufficient  to  create  an  equitable  conversion. 

In  support  of  the  third  reason  or  proposition  the  trustee 
relies  upon  the  Estate  of  Pforr  decided  by  our  supreme 
court,  California  Decisions,  volume  28,  No.  1509,  page  105, 
opinion  written  by  Commissioner  Harrison  (144  Cal.  121, 
77  Pac.  825),  which  it  is  claimed  has  become  the  law  of  the 
state  and  is  the  latest  expression  of  the  court  itself  upon 
the  important  questions  therein  discussed.  In  that  case  the 
testator  desired  and  directed  the  executors  to  take  charge  of 
the  property,  to  collect  its  rents  and  income,  defray  expenses, 
renew  mortgages,  and  execute  new  ones  when  necessary  for 
a  term  of  two  years  from  the  date  of  his  demise,  and  then 
he  desired  them  to  have  the  property  sold  at  public  auction 
or  otherwise  and  to  divide  the  net  proceeds  into  six  equal 
parts  and  distribute  the  same  among  his  heirs  and  devisees 
as  therein  set  forth. 

The  commissioner  held  that  the  provision  for  the  sale  of 
the  property  and  the  distribution  of  its  proceeds  among  the 
six  beneficiaries  operated  as  an  equitable  conversion  of  the 
real  estate  into  personalty,  under  section  1338  of  the  Civil 
Code,  which  provides  that  when  a  will  directs  the  conversion 
of  real  property  into  money,  such  property  and  all  its  pro- 
ceeds must  be  deemed  personal  property  from  the  time  of 
testator's  death;  and  this  result  is  not  overcome  by  reason 
of  the  testator  having  used  the  word  "desire"  instead  of 
''direct"  in  authorizing  the  sale,  for  the  w^ords  "I  desire" 
that  my  real  estate  shall  be  sold  are  the  equivalent  of  the 
words  "I  will"  that  it  be  sold,  as  while  the  desire  of  a  tes- 
tator for  the  disposal  of  his  estate  is  a  mere  request  when 
addressed  to  his  devisee,  it  is  to  be  construed  as  a  command 
when  given  to  his  executor.  The  commissioner  further  held 
that  whether  such  a  conversion  is  effected  depends  upon  the 
intention  of  the  testator  as  gathered  from  the  entire  provi- 
sions of  his  will ;  and,  if  it  is  apparent  from  its  terms  that 
it  was  his  will  that  the  estate  be  sold  and  the  proceeds  given 
to  his  beneficiaries  an  equitable  conversion  results,  even  if 
the  direction  for  the  sale  is  not  imperative,  citing  a  New 
York  case.  Dodge  v.  Pond,  23  N.  Y.  69,  in  support  of  this 


Estate  of  Skae.  413 

point,  and  adding,  from  a  New  Jersey  opinion,  that  the  ques- 
tion of  conversion  is  one  of  intention,  the  real  question  be- 
ing. Did  the  testator  intend  his  land  should  be  converted  into 
money  at  all  events  before  distribution!  Wurts  v.  Page,  19 
N.  J.  Eq.  375.  The  applicant  admits  that  the  words  "at  all 
events"  in  this  quotation  state  the  law  correctly,  in  the  sense 
that  the  direction,  whether  express  or  implied,  must  be  man- 
datory, but  as  to  the  part  of  his  opinion  given  upon  the  au- 
thority of  Dodge  V.  Pond,  counsel  says  that  the  language  of 
the  learned  commissioner  is  based  on  a  syllabus  not  corre- 
sponding to  the  text.  As  this  case  is  considered  of  author- 
itative importance,  it  may  be  worth  while  to  compare  the 
syllabus,  page  69,  with  the  terms  of  the  opinion  on  page  76 
of  the  report.  The  syllabus  is:  "Where  a  testator  author- 
izes his  executors  to  sell  real  estate,  and  it  is  apparent  from 
the  general  provisions  of  the  will  that  he  intended  such  es- 
tate to  be  sold,  the  doctrine  of  equitable  conversion  ap- 
plies, although  the  power  of  sale  is  not  in  terms  imperative." 
Judge  Selden,  in  delivering  the  decision  said:  "It  is,  per- 
haps, not  very  important,  so  far  as  the  questions  argued  at 
the  hearing  are  concerned,  to  determine  whether  the  power 
of  sale  conferred  upon  the  executors  by  the  first  clause  of 
the  will  is  to  be  regarded  as  imperative,  or  merely  discre- 
tionary, or  whether  we  treat  the  property  as  partly  real  and 
partly  personal,  as  at  the  death  of  the  testator,  or  as  all  con- 
verted into  personalty.  If,  however,  it  is  deemed  to  have 
any  bearing  on  the  questions  presented,  there  can  be  no 
doubt,  from  the  terms  of  the  power  and  the  general  provi- 
sions of  the  will,  that  the  testator  intended  that  the  whole 
real  estate,  except  that  portion  devised  to  the  widow,  should 
be  sold  and  converted  into  mone^',  prior  to  the  general  dis- 
tribution provided  for  in  the  twentieth  clause,  and  that, 
upon  the  established  principles  of  equitable  conversion,  this 
should  be  considered  as  done."  The  first  clause  of  the  will 
authorized  and  empowered  the  executors  to  sell  and  convert 
into  money  all  the  testator's  estate,  real  and  personal  (ex- 
cept that  given  to  his  wife),  either  at  public  or  private  sale, 
and  upon  sucli  terms  as  they  might  think  conducive  to  the 
interests  of  his  estate.     Counsel  for  the  daughter  discredits 


414  Coffey's  Probate  Decisions,  Vol.  1. 

this  decision  and  asserts  that  it  is  not  authority  even  in  New 
York,  and  is  not  followed  there  by  any  one  of  the  leading 
cases,  to  which  his  adversary  answers  that  it  has  been  fre- 
quently  approved  in  that  and  other  states,  and  that  none 
of  the  cases  cited  in  any  way  modify  or  overrule  the  doctrine 
therein  enunciated,  and  in  that  connection  calls  the  atten- 
tion of  the  court  to  Power  v.  Cassidy,  79  N.  Y.  602,  35  Am. 
JR-ep.  550,  particularly  pages  613  and  614  of  the  opinion  of 
Miller,  J.  It  may  be  said,  by  the  way,  that  the  syllabus  on 
page  603  is  in  words  almost  identical  with  that  in  Dodge 
V.  Pond,  supra.  Judge  Miller  held  that  the  court  below  was 
clearly  right  in  deciding  that  bj^  the  terms  of  the  will  there 
v/as  an  equitable  conversion  of  all  the  testator's  real  estate 
into  personalty.  The  whole  scope  and  tenor  of  the  will 
evinces  that  the  testator  intended  such  a  conversion  and  that 
the  estate  should  be  divided  as  personal  estate.  The  doc- 
trine of  equitable  conversion  is  quite  familiar  and  the  rule 
on  the  subject  well  settled.  It  is  obvious  upon  the  face  of 
the  will  that  the  testator  intended  that  such  conversion  should 
be  made.  The  executors  are  vested  with  full  power  and  au- 
thority to  sell  as  they  may  deem  proper,  and  after  making 
ample  provisions  for  the  wife  of  testator  and  directing  the 
payment  of  certain  legacies,  the  residue  is  to  be  divided :  one- 
third  to  the  widow,  one-third  to  a  nephew,  and  the  "bal- 
ance" among  a  class  of  institutions  to  be  designated  and  in 
proportions  to  be  fixed  as  directed.  The  language  could  not 
have  been  more  emphatic,  said  Judge  Miller,  nor  more  di- 
rect to  carry  out  the  design  of  a  division  of  the  remainder 
as  personal  estate.  The  estate  could  only  be  effectually  di- 
vided, and  the  purposes  of  the  will  efficiently  carried  out, 
by  converting  the  real  into  personal  property ;  and  the  .judge 
proceeds  to  point  out  what,  in  his  judgment,  would  be  the 
impropriety  and  embarrassment  and  possible  loss  attendant 
upon  a  contrary  construction  which  would  necessarily  inter- 
fere with  the  designs  and  purposes  which  the  testator  had 
in  mind  when  he  made  his  will,  and  would,  moreover,  be  ad- 
verse to  the  general  rule  of  interpretation  which  is  applicable 
in  cases  of  this  description.  Judge  Miller  concluded  his  de- 
cision on  this  head  by  remarking  that  the  circumstance  that 


Estate  of  Skae.  415 

the  direction  to  sell  was  not  imperative,  was  by  no  means 
conclusive,  for  the  reasons  already  recited  in  the  syllabus  in 
Dodge  V.  Pond,  supra,  which  he  cites  and  repeats  in  the  ex- 
act words  found  on  page  69.  It  appears  in  this  instance, 
at  least,  that  the  syllabus  does  correspond  to  the  text;  but 
counsel  for  the  daughter  says  that  the  Pforr  case  does  not 
uphold  the  executor's  contention  that  there  is  in  the  will  of 
Mrs.  Skae  an  implied  direction  to  convert  sufficient  to  effect 
a  conversion  of  her  real  estate  into  personal  property.  In 
Pforr 's  estate  the  direction  to  the  executor  to  sell  was  man- 
datory and  imperative ;  nothing  was  left  to  the  discretion 
of  the  executor  except  the  manner  of  sale ;  the  sale  had  to 
be  made  in  any  event ;  and  this  worked  a  conversion,  accord- 
ing to  counsel,  under  the  rule  laid  down  in  the  leading  Cali- 
fornia cases,  but  has  no  bearing  on  a  case  where  the  equi- 
table conversion  is  effected  by  implied  direction.  An  ex- 
amination of  the  record  in  the  Estate  of  Pforr  shows  that  no 
point  had  been  raised  as  to  equitable  conversion  in  either 
trial  or  appellate  court ;  but  the  learned  commissioner,  never- 
theless, held  that  the  express  and  mandatory  directions  in 
the  will  caused  a  conversion;  that  is  to  say,  he  imported  a 
new  question  into  the  controversy  which  was  not  referred 
to  by  counsel  in  the  argument  nor  considered  by  the  court 
below  nor  in  any  manner  alluded  to  in  the  briefs  or  tran- 
script on  appeal.  In  that  case,  however,  although  the  atten- 
tion of  the  court  was  called  in  the  petition  for  rehearing 
to  the  fact  that  the  doctrine  of  equitable  conversion  was  not 
relied  upon  or  mentioned  by  the  parties  or  their  counsel,  the 
application  was  denied  and  thus  the  executor  considers  the 
discussion  of  the  value  of  the  decision  is  at  an  end,  and  it 
is  binding  on  this  court  in  this  case.  In  the  Pforr  estate 
the  commissioner  quoted  from  Pomeroy's  Equity  Jurispru- 
dence, but  inasmuch  as  an  erroneous  deduction  is  imputed 
to  him,  it  may  be  well  to  consider  the  text  of  the  entire  sec- 
tion of  which  his  quotation  forms  the  last  two  sentences. 
Professor  Pomeroy  says  in  section  1160,  in  treating  of  what 
words  are  sufficient  to  effect  a  conversion,  that  the  whole 
scope  and  meaning  of  the  fundamental  principle  underlying 
the  doctrine  are  involved  in  the  existence  of  a  duty  resting 


416  Coffey's  Probate  Decisions,  Vol.  1. 

upon  the  trustee  to  do  the  specified  act;  for  unless  the  equi- 
table ought  exists,  there  is  no  reason  for  the  operation  of 
the  maxim,  equity  regards  that  as  done  which  ought  to  be 
done.  The  rule  is  therefore  firmly  settled,  that  in  order  to 
work  a  conversion  while  the  property  is  yet  actually  un- 
changed in  form,  there  must  be  a  clear  and  imperative  di- 
rection in  the  will  to  convert  the  property — that  is,  to  sell 
the  land  for  money,  or  to  lay  out  the  money  in  the  purchase 
of  land.  If  the  act  of  converting  is  left  to  the  option,  dis- 
cretion, or  choice  of  the  trustee,  then  no  equitable  conver- 
sion will  take  place,  because  no  duty  to  make  the  change 
rests  upon  him.  It  is  not  essential,  however,  that  the  di- 
rection should  be  express,  in  order  to  be  imperative;  it  may 
be  necessarily  implied.  Where  a  power  to  convert  is  given 
without  words  of  command,  so  that  there  is  an  appearance 
of  discretion,  if  the  trusts  or  limitations  are  of  a  descrip- 
tion exclusively  applicable  to  one  species  of  property,  this 
circumstance  is  sufficient  to  outweigh  the  appearance  of  an 
option,  and  to  render  the  whole  imperative.  Thus  if  a  power 
is  given  to  lay  out  money  in  land,  but  the  limitations  ex- 
pressed are  applicable  only  to  land,  this  will  show  an  in- 
tention that  the  money  should  be  so  laid  out,  and  will  amount 
to  an  imperative  direction  to  convert,  for  otherwise  the  terms 
of  the  instrument  could  not  be  carried  into  effect.  In  fact, 
the  whole  result  depends  upon  the  intention.  If  by  express 
language,  or  by  a  reasonable  construction  of  all  its  terms, 
the  instrument  shows  an  intention  that  the  original  form  of 
the  property  shall  be  changed,  then  a  conversion  takes  place. 
In  the  New  Jersey  case,  Wurts  v.  Page,  from  which  Com- 
missioner Harrison  made  a  short  quotation  in  the  Pforr  es- 
tate, the  chancellor  said  that  the  doctrine  of  equitable  or 
notional  conversion  is  well  established,  the  difficulty  being 
in  its  application.  Wherever  a  testator  has  positively  di- 
rected his  real  estate  to  be  sold  and  distributed  as  money, 
it  will  be  considered  for  the  purposes  of  succession  as  per- 
sonal; but  in  that  case  there  was  no  such  direction.  The 
direction  to  sell  simply  authorized  and  empowered  his  execu- 
tors to  sell  any  part  of  his  real  estate  in  case  they  should 
at  any  time  deem  it  advisable.     The  court  held  that  this  was 


Estate  of  Skae.  417 

not  a  direction  to  convert,  but,  on  the  contrary,  a  seeming 
direction  to  let  it  remain  as  real  estate,  until  it  became  ad- 
visable from  time  to  time  to  sell  it;  and  the  chancellor  said 
if  this  were  the  only  part  of  the  will  to  guide  him,  the  real 
property  could  not  be  considered  as  converted  until  actually 
sold ;  but  the  question  of  conversion  is  one  of  intention ;  the 
real  point  is,  Did  the  testator  intend  his  lands  to  be  con- 
verted into  money  at  all  events  before  the  distribution  ?  In 
the  Wurts  case,  it  seemed  to  the  chancellor  that  the  direc- 
tions in  other  parts  of  the  will  show  clearly  that  he  did  so 
intend.  The  spirit  of  the  whole  directions  showed  that  con- 
version was  intended.  All  the  directions  showed  that  the 
testator  intended  that  his  estate  should  be  converted  into 
money  before  it  was  distributed  by  his  trustees,  and  they 
would  be  required  to  convert  it  into  money  before  distribu- 
tion and  to  pay  it  over  in  that  form ;  and  the  rule  is  well 
settled  that  if  the  will  requires  the  real  estate  to  be  converted 
into  money  at  all  events,  notwithstanding  the  executors  may 
have  a  discretion  as  to  the  time,  it  must  be  considered  as 
'Converted  into  money  from  the  death  of  the  testator.  One 
of  the  directions  was  that  the  portions  of  his  sons  and  his 
grandson  were  to  be  paid  to  them  upon  their  arriving  re- 
spectively at  the  age  of  twenty-two  years. 

In  connection  with  these  authorities,  it  is  argued  by  the  n 
respondent  in  the  case  at  bar  that  the  duty  to  convert  re- 
sults from  the  duty  of  the  trustee  to  carry  out  the  provisions 
of  the  will;  and  it  is  claimed  that  the  decisions  abundantly 
establish  the  doctrine  that  where  there  is  an  authority  to 
sell  and  the  language  of  the  entire  instrument  shows  that 
it  was  the  intention  of  the  testatrix  that  the  bequests  should 
be  paid  in  personal  property  rather  than  in  real  estate,  the 
duty  results  to  convert  real  estate  into  personal  property. 
The  words  used  by  her  indicate  the  purpose  of  testatrix  to 
have  the  entire  property  distributed  as  personal  rather  than 
transferred  as  real  estate.  The  testatrix  throughout  uses 
the  words  "pay"  and  "paid,"  the  idea  of  which  necessarily 
involves  liquidation  in  money  or  personal  equivalent.  She 
provides  that  the  trustee  shall  "pay"  out  of  the  principal  of 
said  trust  fund  $50,000  to  the  surviving  husband  and  "dis- 

Prob.  Dec,  Vol.  I — 27 


418  Coffey's  Probate  Decisions,  Vol.  1. 

tribute  the  remainder  of  said  trust  property  among  the  chil- 
dren," if  any,  of  her  daughter.  In  case  her  daughter  die 
leaving  no  issue,  the  trustee  shall  "pay"  out  of  the  trust 
property  which  would  have  gone  to  such  issue  certain  "gifts," 
and  after  all  these  gifts  shall  be  fully  "paid"  the  trustee  is 
directed  to  "divide"  the  residue.  If  it  had  been  the  inten- 
tion of  the  testatrix  that  the  property  should  go  in  kind  to 
the  children,  the  apt  words  would  have  been  "transfer  and 
convey, ' '  and  it  would  have  been  the  plain  duty  of  the  drafts- 
man of  the  document  to  have  used  such  phrase,  if  that  had 
been  the  idea  communicated  to  him  as  the  direction  of  de- 
cedent. If  this  contention  be  correct,  there  is  no  trust  to 
convey  in  the  will  of  Alice  Skae.  In  this  view  of  the  case, 
it  does  not  seem  possible  to  carry  out  all  the  terms  of  the 
testament  without  a  sale  of  at  least  a  portion  of  the  real 
estate;  but,  the  trustee  contends  that  even  if  it  were  possible 
to  do  so  in  a  certain  contingency,  such  possibility  should  not 
be  seized  upon  as  a  reason  for  overthrowing  the  manifest 
intention  of  the  testatrix  as  collected  from  the  entire  instru- 
ment. The  scheme  of  the  will  evinces  a  far-reaching  purpose 
to  provide  for  every  contingency  that  might  possibly  arise. 
After  the  provision  for  the  daughter  during  her  lifetime, 
she  establishes  a  fund  the  result  of  an  investment  of  the  pro- 
ceeds of  sale  of  the  w^hole  or  any  part  of  her  estate,  which 
she  authorized  and  empowered  them  to  make,  and  out  of  those 
proceeds  are  to  be  "paid,"  "distributed,"  and  "divided," 
in  the  contingencies  mentioned,  her  various  bounties  and  bene- 
factions. This  comes  close  to  the  Wurts  case  cited  in  the 
Pforr  estate,  wherein  the  chancellor  remarked  upon  the 
direction  to  invest  as  iinplying  a  sale  of  the  real  estate. 

Counsel  for  the  daughter  disputes  the  authority  of  the 
Pforr  estate,  declaring  that  its  dicta  are  at  variance  with 
the  decisions  of  our  supreme  court  in  important  cases,  which 
announced  the  fundamental  principles  of  the  law  after 
thorough  consideration  and  deliberation,  the  first  cited  being 
Janes  v.  Throckmorton,  57  Cal.  368,  decided  in  1881,  a  case 
of  magnitude  as  to  the  interests  and  principles  involved,  in 
which,  it  is  claimed,  the  rule  is  established  that  in  order  to 
work  a  conversion  it  must  be   obligatory  on  the  trustee  to- 


Estate  of  Skae.  .  419 

sell  the  land  in  any  event,  and  it  was  held  there  was  no 
conversion  because  the  deed  was  not  imperative  that  the  land 
be  sold.  The  case  involved  the  construction  of  a  covenant 
in  the  nature  of  a  declaration  of  trust.  The  statement  of  the 
question  made  by  counsel  for  the  trustee  herein  seems  to  be 
substantially  correct.  The  covenant  provided  that  Throck- 
morton should  sell  so  much  of  the  real  estate  as  he  might 
deem  necessary  to  pay  off  certain  debts  and  encumbrances, 
and  that  he  should  account  and  pay  over  to  two  persons 
named  the  one-fifth  part  of  the  moneys  reniaining  after  pay- 
ing the  indebtedness  and  expenses ;  that  the  said  Throckmor- 
ton should  sell  all  of  the  lands  within  three  years  of  the 
date,  or  at  his  option  convey  the  undivided  one-fifth  part 
of  all  lands  remaining  unsold,  after  the  discharge  of  the 
debts  and  expenses,  to  those  persons,  and  the  question  before 
the  court  was  as  to  the  character  of  their  interest  under  this 
covenant.  It  was  held  to  be  an  interest  in  the  lands.  The 
action  was  brought  to  enforce  an  alleged  trust  in  favor  of 
plaintiff  against  defendant  in  the  one-fifth  part  of  all  money 
proceeds  of  sales  of  the  lands  and  an  undivided  one-fifth 
part  of  all  the  lands  remaining  unsold.  Among  other  de- 
fenses, one  was  that  the  covenant  was  a  personal  one  purely, 
providing  for  no  interest  in  real  estate,  and  that  no  trust 
respecting  the  lands  thereby  arose.  In  discussing  this  de- 
fense, the  court  reviewed  cases  upon  equitable  conversion, 
among  them  Dodge  v.  Pond,  but  expressed  no  dissent  from 
the  conclusion  of  that  decision ;  and,  indeed,  it  had  no  need 
to  consider  that  phase  of  the  doctrine,  which  is  to  the  effect 
that  where  the  power  to  sell  is  discretionary,  but  it  appears 
from  a  consideration  of  all  the  terms  of  the  instrument  that 
it  was  the  intention  of  the  donor  that  the  property  should  be 
sold  before  distribution  an  equitable  conversion  would  result. 
The  court  repeated  the  rule  from  2  Story's  Equity  Juris- 
prudence, section  1214.  tlint  the  inclination  of  courts  of  equity 
upon  this  branch  of  jurisprudence  is  not  generally  to  change 
the  quality  of  the  property,  unless  there  is  some  el(>;ir  iiit(Mi- 
tion  or  act  by  which  a  definite  character,  either  as  inoney 
or  as  land,  has  been  unequivocally  fixed  upon  it  tliroughout ; 
and,   if  this   intention    do   not   clearly   appear,   tlie   property 


420  Coffey's  Probate  Decisions,  Vol.  1. 

retains  its  original  character.     As  counsel  for  the  daughter, 
remarks,  this  is  an  authority  of  the  greatest  weight  and  is 
either  alluded  to  or  quoted  in  nearly  every  American  decision 
on  its  subject.     In  the  case  in  57  California,  the  court  said 
that  the  most  that  could  be  claimed  was,  that  Throckmorton 
had  the  discretion  to  sell  all  of  the  land;  but  so  far  from 
its  being  obligatory  upon  him  to   do  so,   it  was  manifestly 
contemplated  that  a  portion  of  it  might  be  saved  from  sale. 
The  Estate  of  Walkerly,  108  Cal.  627,  49  Am.  St.  Rep.  97, 
41  Pac.  772,  decided  in  1895,  by  the  full  court,  is  claimed 
to  be  a  similar  case  in  which  the  question  here  discussed  was 
fully  argued  and  considered  and  the  law  laid   down  with 
precision,  in  these  terms :  ' '  The  rule  of  equitable  conversion 
merely  amounts  to  this,  that  where  there  is  a  mandate  to  sell 
at  a  future  time,  equity,  upon  the  principle  of  regarding  that 
done  which  ought  to  be  done,  will  for  certain  purposes  and 
in  aid  of  justice  consider  the  conversion  as  effected  at  the 
time  when  the  sale  ought  to  take  place,  whether  the  land  be 
then  really  sold  or  not;  but  whenever  the  direction  is  for  a 
future  sale,  up  to  the  time  fixed  it  is  governed  by  the  law  of 
real  estate."     This  extract  is  quoted  with  approval  in  Bank 
of  Ukiah  v.  Rice,  143  Cal.  270,  101  Am.  St.  Rep.  118,  76  Pac. 
1020,  which  says  that  it  clearly  expresses  the  doctrine  that 
there   can   be   no   conversion   until   the   executor   shall   have 
the  power  to  make  the  sale.     The  opinion  in  the  Bank  of 
Ukiah  V.  Rice  was  written  by  Commissioner  Harrison,  May, 
1904,  and  confirmed  by  department  2  of  the  supreme  court, 
and  counsel  for  the  daughter  insists  that  it  firmly  establishes 
the  law  on  this  point  in  this  state.     In  the  Ukiah  case  the  com- 
missioner said  that  if  the  will  postpones  the  time  of  sale 
until  the  happening  of  some  future  event  or  until  some  fixed 
date,  the  conversion  is  likewise  postponed.     In  the  case  at 
bar,  it  is  claimed  by  the  daughter  that  there  is  not  only  no 
mandate  to  sell,  but  the  beneficiaries  could,  at  any  time  before 
an  actual  sale,  elect  to  take  the  land,  instead  of  its  proceeds, 
and  thus  extinguish  the  authority  of  the  trustee  to  make 
a  sale.     This  proposition  is   advanced   on  the   authority  of 
the  Bank  of  Ukiah  v.  Rice,  page  271,  of  143  Cal,  but  is 
answered  by  the  suggestion  that  it    is  difficult    to    conceive 


Estate  of  Skae.  421 

that    the  beneficiaries  in  this  case  would  exercise  an   elec- 
tion  to   take   the   land   instead   of   its   proceeds   when   such 
an  act  would  defeat  their  right  to  take  at  all,  even  if  it  were 
true  that  the  property  could  be  distributed  in  kind  by  the 
trustee  without  violating  any  of  the  testamentary  provisions. 
In  the  Estate  of  Walkerly  it  seemed  to  be  claimed  that  the 
equitable  conversion  took  place  at  the  death  of  the  testator. 
The  will  contained  an  imperative  direction  to  the  trustees 
to  sell  and  convey  all  the  trust  estate  at  the  expiration  of 
twentv-five  years  from  the  date  of  the  death  of  the  testator. 
The  court  held  that  this  clause  unlawfully  suspended    the 
power  of  alienation,  and  was  therefore  void,  remarking  that 
the  doctrine  of  equitable  conversion   could  not  be  invoked 
to  aid  that  trust.     The  counsel  in  that  case  had  urged  that 
under  that  doctrine  the  land  should  be  treated  as  sold  and 
converted  into  personal  property,  and  that  such  a  trust  in 
personal  property  would  be  valid,  and  that,  therefore,  the 
Walkerly  trust  must  be  upheld;  but  the  court  observed  that 
would  not   only  be   a    surprising    application    of    the    doc- 
trine, but  would  be  a  novel  and  startling  method  of  evading 
the  law  against  perpetuities  by  invoking  an  equitable  fiction ; 
and  then  the   court   proceeded  to   explain  the   rule   in   the 
language  already  quoted,   ending  with  the  sentence :   ' '  But 
whenever  the  direction  is  for  a  future  sale,  up  to  the  time 
fixed  the  land  is  governed  by  the  law  of  real  estate. ' '     In  the 
matter  of  the  will  of  Alice  Skae,  there  is  no  fixed  period 
during  which  the  property  must  be  retained  as  real  estate. 
Tt  is  claimed  by  the  trustees  that  this  is  the  precise  condition 
which  calls  for  the  application  of  the  doctrine  as  defined  in 
the  Walkerly  case,  in  which,  it  may  be  repeated,  it  was  held 
that  where  the  will  provided  that  the  property  should  not 
be  converted  for  a  determinate  period  an  equitable  convei'sion 
could  not  be  raised  prior  to  the  point  of  time  prescribed; 
and,   it   is   argued,   that   in   the  numerous   cases   of  the   con- 
struction of  wills  in  which  the  doctrine  of  equitable  conver- 
sion has  been  applied  there  was  no  positive  direction  for  a 
sale  and  there  was  no  particular  time  within  which  a  sale 
was  required  to  be  made,  but  the  courts  have  held  that  all 
that  is  necessary  is  to  put  the  doctrine  into  operation  is  an 


422  Coffey's  Probate  Decisions,  Vol.  1. 

intention  implied  from  the  whole  instrument  that  the  sale 
should  be  made  at  some  time  before  the  ultimate  distribution, 
and,  if  such  an  intention  appears,  the  conversion  will  be 
deemed  to  have  been  made  at  the  death  of  the  testator.  Pom- 
eroy  says,  concerning  the  time  from  which  conversion  takes 
effect,  that  this,  like  all  other  questions  of  intention,  must 
ultimately  depend  upon  the  provisions  of  the  particular 
instrument.  The  instrument  might  in  express  terms  contain 
an  absolute  direction  to  sell  or  to  purchase  at  some  specified 
future  time;  and  if  it  created  a  trust  to  sell  upon  the  hap- 
pening of  a  specified  event,  which  might  or  mighlrnot  happen, 
then  the  conversion  would  only  take  place  from  the  time  of 
the  happening  of  that  event,  but  would  occur  when  the  event 
happened  as  though  there  had  been  an  absolute  direction  to 
sell  at  that  time.  Subject  to  this  general  modification,  the 
rule  is  settled  that  a  conversion  takes  place  in  wills  as  from 
the  death  of  the  testator.  The  same  commissioner  who  wrote 
the  opinion  in  the  Bank  of  Ukiah  case  in  May,  1903,  exactly 
two  months  later  delivered  the  decision  in  the  Pforr  estate, 
July,  1904.  The  later  expression  of  his  views  is  hardly  to  be 
presumed  inconsistent  with  the  earlier,  and  both  may  be 
reconciled  with  the  matter  of  Walkerly,  so  far  as  they  are 
made  applicable  to  the  case  at  bar.  The  fact  is,  however,  that 
after  all  our  examination  of  cases  and  authorities,  we  receive 
but  little  assistance  in  reaching  a  conclusion  in  the  matter  in 
hand,  except  (as  has  been  said  repeatedly  by  courts)  for 
the  establishment  of  general  principles  in  the  construction 
of  wills ;  for  it  seldom  or  never  happens  that  two  cases  can 
be  found  precisely  alike:  Le  Breton  v.  Cook.  107  Cal.  416, 
40  Pac.  552,  quoting  Washington,  J.,  in  Lambert's  Lessee 
V.  Paine,  3  Cranch,  131,  2  L.  Ed.  389,  decided  in  1803.  As  it 
was  one  hundred  years  ago,  so  it  is  to-day.  Each  case  must 
be  considered  as  a  whole  with  reference  to  the  object  of  the 
testator.  The  general  principles  are  evident  enough;  the 
difficulty  is,  as  remarked  by  our  supreme  court,  in  their 
application  to  a  given  case.  The  end  of  the  inquiry  of  the 
court  is  the  discovery  of  the  intent  of  the  testator,  and  its 
investigation  must  be  limited  to  the  language  of  the  testa- 
ment.    When  that  end  is  attained,  the  duty  of  the  court  is 


Estate  of  SkxVe.  423 

to  execute  that  intent.  It  may  be  that  the  result  of  the 
judicial  inquiry  may  be  contrary  to  the  real  design  of  the 
decedent,  but  the  intention  to  be  sought  after  is  not  that 
merely  which  existed  in  the  mind,  but  that  which  took  form 
in  the  written  words  of  the  testator ;  and  if  those  words  admit 
of  no  other  construction  than  one  which  clearly  shows  that 
she  attempted  to  dispose  of  her  property  in  a  manner  for- 
bidden by  statute,  the  intention  of  the  testatrix  should  be 
interpreted  in  defeasance  of  her  purpose.  This  may  seem 
a  harsh  result,  as  was  said  in  the  Walkerly  case,  to  interpret 
an  instrument  contrary  to  the  will  of  the  testator;  but  if 
the  intent  be  expressed  in  terms  at  variance  with  the  law, 
the  trust  must  fail;  for,  even  though  it  be  true  that  such 
was  not  the  testator's  intent,  he  must  do  more  than  merely 
evince  an  intention  in  a  certain  direction,  he  must  make  a 
valid  disposition  of  his  property.  It  is  always  with  reluctance 
that  courts  declare  a  will  or  a  provision  thereof  void,  and  in 
all  cases  they  endeavor  to  carry  out  the  intentions  of  a 
deceased  person,  as  expressed  in  the  will,  if  it  can  be  done 
without  disregarding  the  law  and  the  statutes  of  the  state; 
and  they  would  violate  their  duty  and  the  trust  reposed  in 
them  if  they  should  disregard  the  law  enacted  by  the  legis- 
lature and  its  mandates  to  carry  into  effect  a  will  in  violation 
thereof:  Estate  Dixon,  opinion  by  Commissioner  Cooper,  de- 
partment two,  supreme  court,  June  10,  1904,  143  Cal.  511, 
77  Pac.  412. 

Is  this  court,  in  considering  and  construing  the  will  of 
Alice  Skae,  deceased,  placed  in  the  predicament  described  in 
which,  it  is  confessed,  the  natural  and  true  intention  of  the 
testatrix  was  made  to  yield  to  legal  interpretation  of  her 
language ;  for  it  is  admitted  here  that  tlie  intent  of  the 
testatrix  is  evident,  but  that  such  intent  is  to  be  nullified 
by  judicial  construction  of  her  words.  At  the  risk  of  repeti- 
tion there  may  be  introduced  here  from  Beach  on  Modern 
Equity  Jurisprudence,  what  counsel  for  the  daughter  in  the 
case  at  bar  says  is  a  statement  of  the  doctrine  under  dis- 
cussion which  declares  the  rule  in  the  most  clear  and  con- 
cise terms.  p]quitable  conversion,  remarks  Beach,  may  take 
place  by  implication  as  well  as  by  express  words.     When- 


424  Coffey's  Probate  Decisions,  Vol.  1. 

ever  the  general  scheme  of  the  will  requires  a  conversion, 
the  power  of  sale,  although  not  in  terms  imperative,  oper- 
ates as  a  conversion.  The  necessity  of  a  conversion  to  ac- 
complish the  purposes  expressed  in  a  will  is  equivalent  to 
an  imperative  direction  to  convert.  But  the  provisions  of 
the  will  must,  at  least,  be  of  suoh  a  character  as  to  leave  no 
doubt  of  the  testator's  intent  that  there  should  be  a  con- 
version. In  a  late  case  in  New  York  (1892)  it  was  said  that 
to  justify  a  conversion  there  must  be  a  positive  direction 
to  convert,  which  though  not  expressed  may  be  implied,  but, 
in  the  latter  case,  only  when  the  design  and  purpose  of  the 
testator  is  unequivocal  and  the  implication  so  plain  as  to 
leave  no  substantial  doubt :  Clift  v.  Moses,  116  N.  Y.  157,  22 
N.  E.  393.  Where  only  a  power  of  sale  is  given,  without 
explicit  and  imperative  directions  for  its  exercise,  and  the 
intention  of  the  testator  can  be  carried  out  without  a  con- 
version, none  will  be  ad,iudged;  and  where  there  are  no  ex- 
press directions  for  a  conversion  none  will  result  because  it 
would  be  convenient  as  an  aid  to  the  distribution  of  the 
estate;  it  must  be  necessary  and  essential.  In  support  of 
this  text  is  cited,  among  many  other  cases,  Power  v.  Cassidy, 
heretofore  considered  in  this  opinion. 

As  recognizing  and  tending  to  illustrate  the  doctrine  and 
its  application  contended  for  by  the  trustee  herein,  he  calls 
particularly  the  attention  of  the  court  to  the  decision  in 
King  V.  King,  13  R.  I.  510,  in  which  it  was  said  that  the 
equitable  conversion  of  a  testator's  realty  into  personalty 
depends,  as  to  both  extent  and  existence,  upon  his  intention 
judicially  determined  from  his  will.  In  that  case  it  was 
not  contended  that  the  clause  under  construction  contained 
any  direction  expressly  given  that  the  real  estate  should  be 
converted  at  all  events.  The  language  was  permissive,  not 
mandatory;  it  conferred  an  authority,  but  did  not,  at  least 
in  express  terms,  issue  a  command ;  indeed,  the  authority  was 
not  unqualifiedly  given.  The  trustees  were  empowered  to  sell 
and  convey  and  change  investments,  not  arbitrarily  or  ab- 
solutely, but  "as  they  may  deem  to  be  for  the  interest  of 
the  said  trust,"  "or  to  the  advantage  of  the  said  trust,"  or 
"when  the  sale  of  any  of  said  estate  may  be  necessary  for 
the   payment    of    any    legacy    hereunder."     The    court   said 


'  Estate  of  SkxVe.  425 

that  this  was  not  such  language  as  would  naturally  have 
been  used  if  an  out  and  out  conversion  had  been  intended, 
but  it  thought,  however,  that  the  specific  legacies  were  in- 
tended to  be  paid  in  money,  and  that,  therefore,  for  lack  of 
personal  estate  to  pay  them,  there  would  have  been  neces- 
sarily implied  a  direction,  operating  pro  tanto  as  a  conver- 
sion, to  sell  enough  of  the  real  estate  to  pay  them;  but  there 
was  in  the  same  clause  a  significant  provision,  which  in  it- 
self was  consistent  with  conversion  at  all  events,  that  the 
legatees  might  take  the  real  estate  in  payment  at  a  valuation 
in  lieu  of  money,  and  in  addition  there  was  no  lack  of  per- 
sonalty. 

In  the  case  at  bar  there  is  next  to  no  personal  property, 
and  there  is  no  provision  contemplating  an  election  of  land 
in  lieu  of  money  in  the  instrument^ The  dominant  idea  of 
the  testatrix  seems  to  have  been  to  bestow  her  benefactions 
in  money,  and  the  terms  employed  by  her  leave  no  room  for 
doubt  of  her  intention.  Now,  is  that  intention  to  be  defeated 
by  imputing  to  her  words  a  meaning  foreign  to  her  manifest 
and  persistent  purpose?  Can  this  court,  without  distorting 
her  diction,  destroy  her  will  and  produce  intestacy  where  it 
is  clear  she  intended  to  dispose  of  every  particle  of  her 
property  in  pursuance  of  an  intelligent  design  in  a  well 
wrought  out  scheme?  Is  not  the  exercise  of  the  power  of 
sale  rendered  necessary  and  essential  by  the  scope  of  the 
will  and  its  declared  purposes;  and  is  there  not  here  an 
implied  direction  to  convert,  by  reason  of  the  unequivocal 
manner  in  which  the  designs  and  purposes  of  the  testatrix 
are  expressed,  making  the  implication  so  strong  as  to  leave 
no  substantial  doubt?  Is  not  the  direction  necessarily  im- 
plied? In  order  to  answer  accurately  these  questions,  we 
must  consider  carefully  the  whole  scheme  of  the  will  and 
weigh  the  words  of  the  testatrix  with  the  facts  and  cir- 
cumstances of  the  case.  At  the  time  of  her  death  she  had, 
in  round  numbers,  about  $30,000  in  cash,  no  other  person- 
alty of  consequence;  one  parcel  of  real  estate,  120x206.3. 
part  of  Western  Addition  block,  on  Larkin  street,  fronting 
from  Fulton  street  to  Birch  avenue,  valued  at  $150,000, 
with  improvements  thereon  appraised  at  $50,000. 


/ 


.426  Coffey's  Probate  Decisions,  Vol.  1. 

The  personalty  would  have  been  virtually  consumed  by 
the  first  bequest,  if  it  had  not  been  changed  by  the  codicil; 
but,  notwithstanding  the  revocation,  it  exhibited  the  inten- 
tion of  the  testatrix  at  the  time  she  executed  the  will.  It 
provided  for  the  discharge  of  debts  and  funeral  expenses, 
and  as  part  of  the  latter  directed  the  demolition  of  the 
burial  vault  wherein  lay  the  remains  of  her  husband  and 
two  deceased  children  and  the  erection  of  a  new  vault  at  a 
cost  of  from  twenty  to  twenty-five  thousand  dollars.  After 
this  the  testatrix  had  practically  only  real  property  to  deal 
with,  so  far  as  the  actual  present  species  was  concerned;  but 
she  used  the  technical  expressions  appropriate  to  carry  both 
real  and  personal,  "give,  devise  and  bequeath,"  thus  imply- 
ing her  knowledge  of  the  legal  force  and  effect  of  the  differ- 
ent testamentary  words  and  the  import  of  the  distinct  ideas 
so  represented.  She  then  authorized  and  empowered  the 
trustee  to  sell  the  real  estate,  and  then  follows  the  clause 
which  furnishes  the  bone  of  contention  in  this  case.  Giv- 
ing all  due  weight  to  the  argument  of  counsel  for  the  daugh- 
ter, this  court  cannot  accept  his  conclusion  without,  in  its 
judgment,  doing  violence  to  the  intention  of  the  testatrix. 
Taking  the  words  in  their  logical  and  actual  relation,  they 
indicate  a  connection  in  her  mind  between  the  idea  of  a 
sale  and  the  distribution  of  the  proceeds  thereof.  The  en- 
tire context  admits  of  no  other  interpretation.  The  sale 
produces  the  fund  and  the  funds  to  be  distributed  in  dollars, 
cash  payments.  Testatrix  then  provides,  for  the  event  of 
the  death  of  the  daughter  without  issue,  all  hioney  bequests, 
"gifts"  to  be  paid,  in  cash,  so  many  dollars  to  each  donee. 
Without  a  sale  of  real  estate,  these  legacies  could  not  be 
paid;  conversion  is  necessary  to  their  satisfaction.  Finally, 
testatrix  directs  that  after  all  of  these  gifts  shall  be  fully 
paid,  the  trustee  shall  divide  all  the  residue  which  shall  then 
remain  of  said  trust  property  (including  all  gifts  that  may 
lapse,  and  the  sum  given  in  trust  for  ]\Iary  Skae,  after  the 
termination  of  said  trust),  unto  and  among  six  persons, 
Qames  and  addresses  given.  A  partition  of  the  property 
can  hardly  be  ascribed  to  testatrix  under  this  item.  The  re- 
marks of  the  New  York  court  of  appeals  in  Power  v.  Cas- 
sidy,   supra,   page   614,   are   here  somewhat   in   point.     The 


Estate  op  Skae.  427 

evidence  in  the  ease  at  bar  shows  that  a  partition  of  the 
real  estate  into  six  pieces,  with  the  structures  thereon  as 
they  were  at  her  death  and  are  now  would  be  impracticable, 
and,  even  if  there  were  no  improvements,  such  a  course 
might  seriously  diminish  the  value  of  the  property,  and 
lessen  the  avails  to  be  distributed.  The  words  used  in  this 
clause,  moreover,  apply  to  gpal  rather  than  to  personal  prop- 
erty; no  one  word  being  exclusively  pertinent  to  realty,  some 
never  so  applied,  and  all  pointing  to  a  disposition  of  per- 
sonalty. 

Taking  the  instrument  in  its  entire  form  and  substance, 
letter  and  spirit,  construing  and  interpreting  its  language 
in  the  light  of  reason  and  authority,  this  court  is  of  opinion 
that  the  whole  scope  and  tenor  of  the  will  imports  an  equi- 
table conversion;  and,  thus  the  application  for  partial  dis- 
tribution must  be  and  is  denied. 


Eciuitable  Conversion  is  that  change  in  property  by  which,  for  cer- 
tain purposes,  real  estate  is  considered  as  personal,  and  personal  as 
real:  Haward  v.  Peavey,  128  111.  430,  15  Am.  St.  Eep.  120,  21  N.  E. 
503,  note  in  5  Am.  St.  Eep.  141.  Whether  such  a  result  is  worked 
by  a  will  depends  upon  the  intention  of  the  testator.  If  it  is  ap- 
parent from  the  express  terms  of  the  instrument,  or  by  necessary 
implication,  that  he  intended  his  real  estate  to  be  sold  and  the  pro- 
ceeds given  his  beneficiaries,  an  equitable  conversion  results,  al- 
though perhaps  the  direction  to  sell  is  not  imperative,  as  where 
the  word  "desire"  instead  of  "direct"  is  addressed  to  the  exec- 
utors: Estate  of  Pforr,  144  Cal.  121,  77  Pac.  825.  "Where  the  will 
directs  the  sale  of  real  estate  expressly,  or  by  clear  implication,  or 
where  a  sale  is  absolutely  necessary  to  the  execution  of  the  provisions 
of  the  will,  such  real  estate  is  equitably  converted  into  personalty 
from  the  time  of  the  testator's  death":  Penfield  v.  Tower,  1  N.  D. 
216,  46  N.  W.  413.     But  see  Estate  of  Lahiflf,  86  Cal.  153,  24  Pac.  850. 


0 


428  Coffey's  Probate  Decisions,  Vol.  1. 


Estate  of  JOHN  FAY,  Deceased. 

[No.  26,323;   decided  March   12,   1902.] 

An  Olographic  Will  Which  by  Mistake  Bears  a  Date  at  least  twenty- 
eight  years  prior  to  the  time  of  its  execution  should  be  denied 
probate.     [See  note  at  end  of  opinion.^ 

Louis  S.  Beecly,  for  the  proponents. 

Bart  Burke  and  Chas.  J.  Pence,  for  the  contestants. 

COFFEY,  J.  This  is  a  proceeding  for  the  probate  of  a 
certain  instrument  alleged  in  the  petition  to  be  the  last  will 
and  testament  of  John  Fay,  deceased. 

The  proposed  will  is  olographic  in  form,  was  entirely 
written,  dated,  and  signed  by  the  hand  of  the  testator  him- 
self. It  bears  date  "May  twenty-fifth  eighteen  hundred  and 
fifty-nine. ' ' 

This  alleged  will  makes  certain  bequests  and  devises  to 
the  surviving  wife  and  children  of  the  deceased,  naming 
them,  and,  among  others,  to  a  daughter,  Mary  Montealegre. 

It  appears  that  at  the  date  of  said  will  the  said  testator 
was  unmarried  and  none  of  his  said  children  was  yet  born; 
that  Mary  Montealegre,  his  daughter,  was  married  on  the 
thirty-first  day  of  January,  1887,  to  Charles  F.  Montealegre, 
from  whom  she  was  divorced  on  the  twenty-ninth  day  of 
July  1890,  and  by  the  provisions  of  the  decree  of  divorce 
she  was  authorized  to  resume  her  maiden  name  of  Mary 
Fay.  She  died  March  29,  1900,  nearly  two  years  prior  to 
the  death  of  the  testator,  leaving  her  surviving  no  child  or 
children  or  lineal  descendants.  Luke  Fay,  the  oldest  son  of 
said  deceased,  was  born  February  28,  1861,  nearly  two  years 
subsequent  to  the  date  of  said  will. 

It  is  apparent,  therefore,  that  the  will  in  question  could 
not  have  been  executed  earlier  than  January  31,  1887,  the 
date  of  the  marriage  of  his  daughter  as  aforesaid,  and  prob- 
ably not  later  than  the  decree  of  divorce  rendered  July  29, 
1890,  when  she  resumed  her  maiden  name,  as  it  is  not  likely 
that  after  such  date  the  deceased  would  have  named  her  in 
his  will  as  "Mary  Montealegre." 


Estate  of  Fay,  429 

The  question  to  be  determined  is,  Was  this  instrument 
duly  executed  as  an  olographic  will? 

This  will  bears  a  date  at  least  twenty-eight  years  prior  to 
its  execution.  Does  this  comply  with  section  1277  of  the 
Civil  Code?  That  section  is  as  follows:  "An  olographic  will 
is  one  that  is  entirely  written,  dated,  and  signed  by  the 
hand  of  the  testator  himself.  It  is  subject  to  no  other  form, 
and  may  be  made  in  or  out  of  this  state,  and  need  not  be 
witnessed. ' ' 

That  a  date  is  one  of  the  requisites  of  an  olographic  will, 
and  that  such  date  must  be  written  by  the  testator  himself 
is  the  settled  law  of  this  state. 

In  Estate  of  Martin,  58  Cal.  530,  there  was  no  date  to 
the  will,  which  was  olographic,  and  it  was  held  invalid,  al- 
though it  contained  a  declaration  that  the  testator  was  "of 
the  age  of  sixty  years." 

In  Estate  of  Rand,  61  Cal.  468,  44  Am.  Rep.  555  and  in 
Estate  of  Billings,  64  Cal.  427,  1  Pac.  701,  it  was  held  that 
an  olographic  will  in  which  the  date  was  partly  written  and 
partly  printed  was  invalid. 

In  Estate  of  Behrens,  130  Cal.  416,  62  Pac.  603,  it  was 
conceded  that  the  olographic  will  in  question  in  that  case, 
bearing  date  in  the  writing  of  the  testator  of  "Febr.  12, 
'98,"  was  sufficiently  dated  under  the  code. 

In  Estate  of  Lakemeyer,  135  Cal.  28,  87  Am.  St.  Rep.  96, 
66  Pac.  961,  it  was  held  that  the  words  and  figures,  "New 
York,  Nov.  22,  '97,"  used  in  an  olographic  will,  constitute  a 
date,  and  that  the  will  was  sufficiently  dated. 

In  no  case  reported  in  this  state  or  elsewhere  have  I  been 
able  to  find  the  question  involved  in  the  case  at  bar  decided. 
Its  solution,  however,  does  not  seem  to  me  to  be  difficult.  It 
was  evidently  the  intention  of  the  legislature  that  an  olo- 
graphic will  should  not  only  be  dated,  but  that  it  should 
state  the  true  date  of  the  execution  thereof.  In  Estate  of 
Martin.  58  Cal.  530,  the  court  say: 

"It  is  claimed  that  the  dating  of  a  will  is  a  mere  formal 
matter,  not  absolutely  necessary.  We  do  not  think  so. 
The  legislature  has  seen  fit  to  require  three  things  to  con- 
cur, for  the  execution  of  an  olographic  will,  viz.:  That  it  be 
written,  dated,  and  signed  by  the  hand  of  the  testator.     We 


430  Coffey's  Probate  Decisions,  Vol.  1. 

are  not  at  liberty  to  hold  that  the  legislature  intended  any 
one  of  these  requirements  to  be  of  any  greater  or  less  im- 
portance than  the  others.  If  we  may  omit  one,  why  not 
either  of  the  others? 

"The  paper  is  not  aided  by  the  declaration  contained  in 
it,  of  the  age  of  sixty  years.  It  does  not  appear  in  the 
paper  when  he  was  of  the  age  of  sixty  years.  It  may  have 
been  one  day  before  his  decease;  it  may  have  been  ten 
years." 

The  language  of  the  court  above  implies  that  the  will 
must  not  only  be  dated,  but  must  bear  the  date  of  its  execu- 
tion; and  this  in  reason  ought  to  be  so.  The  word  "date" 
is  defined  in  the  Universal  Dictionary  as  follows:  "1.  The 
formula  appended  to  a  letter,  deed,  etc.,  to  denote  the  year, 
month,  and  day  when  such  letter  or  deed  was  signed  or 
executed."  Webster  defines  the  word  "date"  thus:  "That 
addition  to  a  writing  which  specifies  the  year,  month  and 
day  when  it  was  given  or  exercised." 

There  are  several  reasons  why  the  correct  date  should  be 
stated  in  olographic  wills.  Some  of  them  are  noted  in  the 
case  of  Succession  of  Robertson,  49  La.  Ann.  868,  62  Am. 
St.  Rep.  672,  21  South.  586,  as  follows: 

"The  law  enjoins  the  date  on  two  grounds:  The  first,  the 
most  essential,  is  in  order  that  the  precise  date  the  testator 
made  a  disposition  of  his  property  may  be  known,  rendering 
it  possible  to  determine  whether  the  testator  had  the  capacity 
of  giving  at  the  date  the  testament  was  made.  The  second 
ground  is  secondary.  If  there  are  two  testaments,  it  should 
be  manifest  which  is  the  last,  in  case  of  opposing  or  incom- 
patible dispositions. ' ' 

In  that  case  the  date  was  partly  written  and  partly 
printed,  and  the  proposed  will  therein  was  held  invalid  by 
the  court. 

In  Hefii'ner  v.  Hefi:ner,  48  La.  Ann.  1088,  20  South.  281. 
other  reasons  were  noted.  The  will  in  that  case  closed  as  fol- 
lows: "Written,  dated  and  signed  in  my  own  handwriting. 

on  this day  of  June,   1893.     William  Heffner."     The 

court  in  that  case  used  .the  following  language : 

"When  the  code  comes  to  prescribe  the  olographic  testa- 
ment, the  notary,  the  witnesses  and  all  forms  of  authentica- 


Estate  of  Fay.  431 

tion  are  dispensed  with,  and  the  requirement  is  that  such 
a  will  to  have  the  validity  must  be  wholly  written,  dated, 
and  signed  by  the  hand  of  the  testator.  The  policy  of  the 
law  to  secure  the  true  representation  of  the  testator's  wishes 
and  guard  against  fraudulent  wills  is  marked  in  the  requisite 
of  the  testator's  handwriting,  including  the  expression  of 
the  date  when  he  writes  the  paper  and  affixes  the  signature 
it  bears.  The  date  in  the  testator's  handwriting  is  part  of 
the  evidence  the  law  requires  of  the  verity  of  the  instrument. 
If  the  paper  is  forged,  the  date  it  must  bear  may  furnish 
the  means  of  detection,  on  any  issue  of  the  sanity  the  dates 
indicate  and  restrict  the  period  of  inquiry." 

If  the  instrument  in  the  case  at  bar  were  admitted  to 
probate  as  the  last  will  of  deceased,  and  within  the  time 
allowed  by  law,  a  contest  should  be  inaugurated  in  which 
the  mental  capacity  of  the  testator  to  make  the  same  were 
challenged,  at  what  point  in  time  would  the  court  direct  or 
restrict  the  evidence  to  the  point  in  issue'?  The  sanity  of  the 
testator  must  appear  at  the  time  of  the  execution  of  the 
will:  In  re  Wilson,  117  Cal.  269,  49  Pac.  172,  711. 

But  no  person  living  knows,  so  far  as  the  court  is  in- 
formed, when  this  will  was  executed.  It  was  probably  writ- 
ten between  January  31,  1887,  the  date  of  the  marriage  of 
the  daughter  of  the  testator  and  July  29,  1890,  the  date 
of  her  divorce,  but  it  may  have  been  executed  at  any  time 
after  the  former  date  and  prior  to  the  testator's  death,  which 
occurred  January  28,  1902.  Thus  the  court  in  the  event 
of  a  contest  would  have  to  indulge  in  probabilities  in  fixing 
an  event  that  might  have  occurred  at  any  time  within  the 
period  of  fifteen  years,  or  thereabouts. 

In  Ileft'ner  v.  Heffner  48  La.  Ann.  1088,  20  South.  281, 
the  will  must  have  been  written  within  the  month  of  June, 
1893,  yet  the  court  declared  it  was  not  dated. 

Again,  there  may  have  been  another  will,  olographic  or 
otherwise,  of  this  testator.  Suppose  one  were  found  bearing 
the  subsequent  date,  yet  executed  prior  to  January  31.  1887. 
This  would  in  fact  be  a  prior  will,  but  should  such  a  will 
be  admitted  and  produced,  would  it  affect  this  will  if  ad- 
mitted to  probate  bearing  date  as  it  does,  "May  twenty-fifth 
eighteen  hundred  and  fifty-nine"? 


432  Coffey's  Probate  Decisions,  Vol.  1. 

There  are  many  reasons,  it  may  be  urged,  why  the  true 
date  of  an  olographic  will  should  be  stated;  none  whatever 
for  a  wrong  date.  Suppose  the  date  of  this  instrument 
were  A.  D.  1000;  this  would  be  a  technical  compliance  with 
the  law,  but  would  it  meet  the  legislative  intent  incorporated 
in  section  1277  of  the  code?  Manifestly  not.  It  would  in 
effect  be  no  date  at  all.  And  so  in  the  case  at  bar,  where 
almost  thirty  years  must  have  intervened  from  the  date  of 
the  instrument  and  the  actual  time  of  its  execution :  Fuentes 
et  al.  V.  Gaines,  25  La.  Ann.  85,  107. 

In  the  case  last  cited  it  was  sought  to  establish  a  lost  olo- 
graphic will.  Referring  to  the  testimony  of  the  witnesses 
the  court  said:  "In  this  ease  two  witnesses.  Harper  and 
Bellechasse,  state  that  the  will  was  wholly  written,  dated 
and  signed  by  Clark.  Bellechasse  states  it  was  dated  in 
1813.  Harper  says  it  was  dated  in  July,  1813.  Is  this  suffi- 
cient? Is  a  statement,  which  is  dated  A.  D.  1813,  or  July, 
A.  D.  1813,  to  be  deemed  dated  in  the  sense  of  the  law? 
Certainly  not,  if  the  term  "dated"  is  to  be  understood  in 
its  common  and  usual  signification. 

The  reason  why  a  wrong  date  to  an  olographic  will  ren- 
ders the  same  invalid  might  be  further  illustrated  and 
amplified,  but  it  is  unnecessary.  If  the  motives  and  rea- 
sons given  the  cases  cited  are  valid,  and  consonant  with  the 
legislative  intent  in  enacting  section  1277  of  the  Civil  Code, 
then  the  instrument  in  the  case  at  bar  is  certainly  invalid, 
and  the  same  should  be  rejected  and  probate  thereof  refused. 

For  the  reasons  and  upon  the  authorities  hereinabove  re- 
cited and  set  forth  the  paper  propounded  is  denied  probate. 


The  Principal  Case  was  reversed  by  the  supreme  court  in  145  Cal. 
82,  104  Am.  St.  Rep.  17,  78  Pae.  340.  It  is  doubtful,  however, 
whether  the  action  of  the  supreme  court  in  this  case  is  consistent, 
either  with  its  prior  or  subsequent  decisions,  on  the  law  of  olographic 
wills:  See  Estate  of  Martin,  58  Cal.  530;  Estate  of  Billings,  64  Cal. 
427,  1  Pac.  701;  Estate  of  Plumel,  151  Cal.  77,  121  Am.  St.  Rep.  100, 
90  Pac.   192. 

OLOGRAPHIC   WILLS. 

An  Olographic  Will  is  One  Written  Entirely  by  the  hand  of  the 
testator:  Bouvier's  Law  Dictionary,  title  "Holograph";  Rapalje  & 
Lawrence's  Law  Dictionary,  title  "Holograph";  Neer  v.  Cowhick,  4 
Wyo.  49,  31  Pac.  862,  18  L.  R.  A.  588;  note  to  Lagrave  v.  Merle,  52 


Estate  op  Fay.  433 

Am.  Dec.  591.  Where,  however,  there  is  a  codicil,  the  will  and  the 
codicil  may  be  considered  separately,  and  one  be  olographic  and 
the  other  not.  Hence  to  a  will  not  in  the  handwriting  of  the  tes- 
tator, but  duly  witnessed  and  attested,  there  may  be  a  codicil  wholly 
in  his  handwriting,  and  therefore,  though  not  witnessed,  entitled  to 
admission  to  probate  as  an  olographic  will:  In  re  Soher,  78  Cal.  477, 
21  Pac.  8. 

A  Paper  is  not  Necessarily  Entitled  to  Probate  because  it  is  testa- 
mentary in  scope  and  wholly  written  by  the  testator  and  attested 
by  his  signature,  for  the  whole  subject  of  wills  is  under  statutory 
control,  and  every  paper  presented  as  a  will,  whether  olographic  or 
not,  must  conform  to  the  requisites  of  the  statute.  At  the  com- 
mon law  and  by  the  earliest  statutes  upon  the  subject  of  wills  wit- 
nesses thereto  were  not  required,  and  an  olographic  will  must  have 
been  good,  though  not  witnessed,  because  it  would  have  been  equally 
good  though  not  olographic,  provided  it  had  been  executed  by  the 
testator.  The  necessity  for  witnesses  resulted  from  the  statute  of 
29  Charles  II,  chapter  3,  relating  to  frauds  and  perjuries.  It  is  be- 
lieved that  in  each  of  the  states  of  this  Union  statutes  have  been 
enacted  without  compliance  with  which  no  will  is  entitled  to  admis- 
sion to  probate  or  to  otherwise  be  given  effect  as  a  will.  Such  being 
the  case,  the  requisites  of  olographic  wills  must  be  found  in  those 
statutes,  and  where  they  prescribe  any  general  rule  respecting  the 
execution  and  attestation  of  wills,  such  rule  is  equally  applicable  to 
olographic  wills,  and  the  fact  that  a  will  is  wholly  in  the  hand- 
writing of  the  testator  does  not  exempt  it  from  the  rule.  Thus  if 
a  statute  declares  that  all  wills  to  be  valid  must  be  in  writing, 
witnessed  by  two  competent  witnesses,  and  signed  by  the  testator 
or  by  some  person  in  his  presence  and  by  his  direction,  and  that  an 
olographic  will  may  be  proved  in  the  same  manner  that  other  pri- 
vate writings  are  proved,  wills  of  the  latter  class  are  still  subject 
to  the  provision  requiring  witnesses:  Neer  v.  Cowhick,  4  Wyo.  49, 
31  Pac.  862,  18  L.  E.  A.  588.  So  a  statute  may  impose  limitations 
upon  olographic  which  do  not  apply  to  other  wills,  or  may  provide 
that  persons  competent  to  make  the  latter  are  not  competent  to  make 
the  former.  Thus,  if  a  statute  declares  that  a  married  woman  may 
dispose  of  her  separate  estate  by  will  without  the  consent  of  her 
husband,  and  may  alter  or  revoke  the  will  as  if  she  were  single,  and 
that  her  will  must  be  attested,  witnessed  and  proved  in  like  manner 
as  are  other  wills,  she  cannot  make  an  olographic  will,  though  the 
same  statute  recognizes  the  general  right  to  make  such  wills:  Scott 
V.  Harkness,  6  Idaho,  736,  59  Pac.  556. 

Provided  It  Conforms  to  the  Statutory  Requisites  in  Other  Re- 
spects, any  writing  or  combination  of  writings  (Estate  of  Skerrctt,  67 
Cal.  585,  8  Pac.  181)  may  constitute  an  olographic  will,  if  it  ex- 
presses, however  informally,  a  testamentary  purpose  in  language  suffi- 
Prob.  Dec,  Vol.  1—28 


434  Coffey's  Probate  Decisions,  Vol.  1. 

ciently  clear  to  be  understood.  Sums  bequeathed  may  be  stated  in 
figures  as  well  as  in  words:  Succession  of  Vanhille,  49  La.  Ann.  107, 
62  Am.  St.  Eep.  642,  21  South.  191.  "To  the  validity  of  a  will 
the  law  does  not  require  it  should  assume  any  particular  form,  or 
that  any  technically  appropriate  language  should  be  used  therein, 
if  the  intention  of  the  maker  is  disclosed  and  the  distribution  of 
his  property  at  his  death  is  designated."  Hence  a  paper  which  com- 
mences with  a  synopsis  of  some  of  the  principal  events  of  the  writ- 
er's life  and  a  statement  of  property  acquired  by  him,  and  that 
Charlie  Webster  has  helped  him  to  improve  it,  and  concluding,  "I 
have  requested  my  executors  to  give  a  clear  deed  for  the  property 
after  my  death  to  Maggie,  his  wife,  and  Charlie, "  is  entitled  to  ad- 
mission to  probate  as  the  will  of  the  writer.  The  fact  that  he  la- 
bored under  a  mistaken  impression  that  it  was  necessary  for  his  exec- 
utors to  make  'a  conveyance  does  not  prevent  the  writing  from  oper- 
ating as  his  will:    Webster  v.  Lowe,  107  Ky.   293,  53   S.   W.   1030. 

It  will  be  seen  from  this  that  it  is  not  necessary  for  the  writer  to 
know  that  the  paper  which  he  writes  will  amount  to  a  will  or  other- 
wise fully  accomplish  his  purposes.  It  is  sufficient  that  he  mani- 
fests his  wish  that,  on  his  death,  his  property,  or  some  part  of  it, 
shall  go  to  another  person  by  him  designated:  Outlaw  v.  Hurdle,  1 
Jones  (46  N.  C),  150;  Estate  of  Knox,  131  Pa.  220,  17  Am.  St.  Rep. 
798,  18  Atl.  1021,  6  L.  E.  A.  353.  Nor  is  it  necessary  that  such  desig- 
nation be  so  complete  that  parol  evidence  is  not  necessary  to  make 
it  understood.  Thus  the  words,  "Dear  old  Nance:  I  wish  to  give 
you  my  watch,  two  shawls,  and  also  five  thousand  dollars, ' '  properly 
dated  and  subscribed  by  the  writer,  is  an  olographic  will,  and  parol 
evidence  is  admissible  to  prove  who  is  the  person  whom  he  designated 
as  "Old  Nance":  Clarke  v.  Eansom,  50  Cal.  595.  It  is  sufficient 
that  the  will  merely  states  that  the  person  named  therein  is  the 
testator's  heir  if  it  is  also  indorsed  in  his  handwriting  as  his  will: 
Succession  of  Ehrenberg,  21  La.  Ann.  280,  99  Am.  Dec.  729. 

A  will  may  take  the  form  of  a  direction  to  the  testator's  executors 
to  pay  the  beneficiaries  a  sum  specified  at  a  future  designated  date: 
Pena  v.  Cities  of  New  Orleans  and  Baltimore,  13  La.  Ann.  86,  71  Am. 
Dec.  506.  An  olographic  will  may  be  contained  in,  or  be  a  part  of,  a 
letter  written  by  the  testator  to  the  beneficiary  or  to  another:  Buffing- 
ton  V.  Thomas,  84  Miss.  157,  105  Am.  St.  Eep.  423,  36  South.  1039; 
Barney  v.  Hayes,  11  Mont.  571,  28  Am.  St.  Eep.  495,  29  Pac.  282; 
Alston  V.  Davis,  118  N.  C.  202,  24  S.  E.  15;  or  may  consist  of  an 
entry  in  the  testator's  diary:  Eeagan  v.  Stanley,  11  Lea,  316. 

Whether  Directions  for  the  Writing  of  a  Will  may  of  themselves 
constitute  an  olographic  will  is  not  free  from  doubt.  A  paper  en- 
titled, "Directions  how  I  want  my  will  wrote,"  was  denied  admis- 
sion to  probate  in  Virginia,  but  the  reasons  for  such  denial  were 
not  stated  by  the  court,  and,  as  they  may  have  related  to  the  uncer- 
tainty  of   the   directions    thus    referred   to    and   the    impossibility   of 


Estate  of  Fay.  435 

ascertaining  from  them,  even  if  so  admitted,  what  disposition  was 
made  of  the  property  therein  referred  to,  the  case  can  hardly  be 
regarded  as  authority  on  one  side  or  the  other  side  of  the  question: 
Hocker  v.  Hocker,  4  Gratt.  277.  In  Barney  v.  Hayes,  11  Mont.  99, 
571,  28  Am.  St.  Eep.  495,  29  Pac.  282,  384,  it  appeared  that  the  testa- 
tor, after  having  executed  a  will  which  was  duly  attested  by  wit- 
nesses, married  and  subsequently  wrote  to  his  attorneys  referring  to 
his  marriage,  and  stating,  "Now,  what  I  want  is  for  you  to  change 
my  will  so  that  she  will  be  entitled  to  all  that  belongs  to  her  as 
my  wife.  I  am  in  very  poor  health  and  would  like  this  attended  to 
as  soon  as  convenient."  Application  was  made  for  the  admission 
to  probate  of  this  letter  as  a  codicil  to  the  pre-existing  will.  It  was 
conceded  that  the  marriage  had  revoked  the  original  will,  but  that 
if  the  letter  could  be  admitted  as  a  codicil,  it  republished  the  will, 
and  that  the  will  and  codicil  together  constitute  the  last  will  and 
testament  of  the  decedent.  "The  whole  gist  of  the  case,"  said  the 
court,  "therefore,  is  whether  said  letter  was  a  codicil;  that  is, 
whether  it  was  testamentary  in  character.  The  court  submitted  to 
the  jury  a  great  number  of  questions,  which  seemed  to  have  included 
all  matters  of  fact  in  the  case.  The  court  also  required  the  jury  to 
determine  whether  said  letter  was  a  codicil.  The  jury  said  it  was." 
The  trial  court  set  aside  this  finding  and  held  that  the  letter  was 
not  a  codicil.  Its  action  was  reversed  upon  appeal,  the  appellate 
court  holding  that  the  words  contained  in  the  letter  "disclosed  an 
animus  testandi, "  that  the  reasonable  construction  of  the  letter  was 
that  the  testator  wished  his  wife  to  have  a  certain  portion  of  his 
estate,  and  that  no  one  could  read  the  letter  and  be  in  any  doubt 
as  to  what  the  decedent  intended  should  be  the  disposition  of  his 
property  to  his  wife,  and  that  such  intention  being  clear,  the  intent 
must  not  be  ignored  because  the  language  was  not  technical: 

The  Omission  of  Any  of  the  Requirements  of  the  Statute  in  the 
execution  of  an  olograph  will  not  be  overlooked  on  the  ground 
that  it  is  beyond  question  that  the  paper  was  executed  by  the  de- 
cedent as  his  will  while  he  possessed  abundant  testamentary  ca- 
pacity and  was  free  from  fraud,  constraint,  or  undue  influence,  and 
there  is  no  question  of  his  testamentary  purpose  and  no  obstacle 
to  carrying  it  into  effect  had  his  will  been  executed  in  the  manner 
prescribed  by  the  statute:  Estate  of  Eand,  61  Cal.  468,  44  Am.  Eep. 
555;  Succession  of  Armant,  43  La.  Ann.  310,  26  Am.  St.  Eep.  183, 
9  South.  50;  Baker  v.  Brown,  83  Miss.  793,  36  South.  539;  Warwick 
V.  Warwick,  86  Va.  602,  10  S.  E.  843,  6  L.  E.  A.  795.  When,  on 
the  other  hand,  the  paper  offered  has  been  executed  in  compliance 
with  all  the  requisites  imposed  by  the  statutes,  the  courts  will  con- 
strue it  on  the  same  principles  applicable  to  other  wills,  by  seeking 
to  ascertain,  though  its  language  is  untechnical  and  ungrammatical, 
or  words  are  omitted  from  it,  what  was  the  intention  of  the  testa- 
tor,  and   by   giving   effect    to    that   intention,    whenever    lawful,    and 


436  Coffey's  Probate  Decisions,  Vol.  1. 

thus  capable  of  ascertainment.  Therefore,  the  words,  "Crolldepdro, 
february  3,  1892,  this  is  to  serifey  that  ie  levet  to  mey  wife  Eeal 
and  persnal  and  she  to  dispose  for  them  as  she  wis,"  may  be  con- 
strued as  if  it  had  been  written,  "Corral  de  Piedra,  February  3, 
1892.  This  is  to  certify  that  I  leave  to  my  wife  (my)  real  and 
personal  (property),  and  she  to  dispose  of  them  as  she  wishes": 
Mitchell  V.  Donohue,  100  Cal.  202,  38  Am.  St.  Eep.  279,  34  Pac.  614. 

Though  Certain  Words  Taken  by  Themselves  have  no  apparent 
connection  with  other  portions  of  the  will,  ' '  the  testatrix  must  be 
deemed  to  have  written  them  with  the  intention  that  some  effect 
should  be  given  them,  and  that  intention,  so  far  as  it  can  be  gathered 
from  the  will  itself  and  the  circumstances  under  which  it  is  exe- 
cuted, is  to  be  ascertained  by  the  court  and  effect  given  thereto 
accordingly.  The  order  in  which  the  words  of  a  will  are  written  is 
not  determinative  of  the  testator 's  intention,  and  under  a  well-recog- 
nized rule  this  order  will  be  transposed  if  thereby  the  intention  of 
the  testator  can  be  ascertained.  So,  too,  a  word  that  has  been  mani- 
festly omitted  and  is  essential  to  an  understanding  of  the  intention 
of  the  testator  will  be  supplied":  In  re  Stratton,  112  Cal.  513,  44 
Pac.  1028. 

A  Will  cannot  be  Olographic  if  Any  Part  of  It  is  not  in  the  Hand- 
writing of  the  testator.  The  material  with  which  it  is  written  is 
immaterial.  It  may  be  in  pencil  as  well  as  in  ink:  Philbriek's  Heirs 
v.  Spangler,  15  La.  Ann.  46;  Estate  of  Knox,  131  Pa.  220,  17 
Am.  St.  Eep.  798,  18  Atl.  1021,  6  L.  E.  A.  353.  But  whether  in  ink 
or  in  pencil,  every  part  of  it  must  be  in  the  testator 's  handwriting. 
Therefore,  if  a  printed  form  has  been  used,  so  that  the  paper  con- 
sists partly  of  such  printing  and  partly  of  clauses  written  by  the 
testator,  no  part  of  it  can  be  admitted  to  probate  as  his  olographic 
will:  In  re  Band's  Estate,  61  Cal.  468,  44  Am.  Eep.  555;  Williams' 
Heirs  v.  Hardy,  15  La.  Ann.  286.  The  same  result  must  follow  if 
the  will  is  written  on  a  printed  letterhead,  some  of  the  words  or 
figures  of  which  constitute  an  essential  part  of  the  will:  In  re  Bill- 
ing's Estate,  64  Cal.  427,  1  Pac.  701;  Succession  of  Eobertson,  49 
La.  Ann.  868,  62  Am.  St.  Eep.  672,  21  South.  586.  Perhaps,  where 
it  appears  that  all  the  words  necessary  to  a  completely  executed  will 
are  in  the  handwriting  of  the  testator,  it  may  be  admitted  to  pro- 
bate, though  it  is  proved  that  a  few  other  words  are  in  the  hand- 
writing of  another:  McMichael  v.  Bankston,  24  La.  Ann.  451;  and 
certainly  this  is  true  where  the  words  are  written  preceding  the  will 
as  a  mere  caption:  Baker  v.  Brown,  83  Miss.  793,  36  South.  539. 

The  Question  Whether  an  Olograph  may,  by  Referring  to  An- 
other Paper  not  in  the  handwriting  of  the  testator,  make  it  a  part 
of  the  will  is  not  free  from  doubt.  In  Virginia,  where  it  appeared 
that  a  will  had  been  drawn  purpoi'ting  to  give  all  the  testatrix 's 
property  to   her  sisters  Margaret  and   Sallie,  but  had  not   been   sub- 


Estate  of  Fay.  437 

scribed  or  otherwise  executed,  and  that  the  testatrix  had  written  on 
the  same  sheet  of  paper,  "As  Margaret  is  dead,  I  give  her  share 
to  my  niece  Lizzie  Leigh  Gibson,"  and  followed  this  with  her  signa- 
ture and  the  proper  date,  it  was  held  that  this  latter  writing  could 
not  be  admitted  to  probate.  It  was  conceded  that  had  the  original 
will  been  duly  executed,  the  additional  writing  would  have  been  en- 
titled to  probate  as  a  codicil  thereto,  but  a  majority  of  the  court 
was  of  the  opinion  that,  as  the  original  will  was  never  duly  executed, 
nor  in  the  handwriting  of  the  testatrix,  the  subsequent  writing  could 
not  be  admitted  to  probate  as  a  codicil  or  otherwise:  Gibson  v.  Gib- 
son, 28  Gratt.  44.  Where  a  paper  purporting  to  be  a  codicil  is 
executed  with  the  formalities  required  of  a  will,  or  imports  a  refer- 
ence to  some  already  existing  document  regarded  by  the  testator  as 
his  will,  to  identify  that  instrument  and  to  interpret  that  reference 
as  applying  to  it,  all  the  surrounding  circumstances  may  be  shown: 
Estate  of  Plumel,  151  Cal.   77,   121  Am.   St.  Eep.   100. 

Like  doubt  seems  not  to  exist  when  the  paper  referred  to  is  in 
the  handwriting  of  the  testator.  In  Estate  of  Skerrett,  67  Cal.  585, 
8  Pac.  181,  it  appeared  that  the  decedent  signed  and  acknowledged 
a  deed  of  gift  to  his  sister  which  never  became  operative  for  want 
of  delivery.  Afterward  he  sent  her  a  letter  containing  a  copy  of  the 
deed,  declaring  that  nothing  further  was  necessary  than  to  have  it 
recorded,  and  that  the  property  therein  described  would  then  be- 
come hers,  and  that  he  wanted  her  to  know  that  she  was  provided  for 
under  all  circumstances,  and  that  if  it  should  please  God  to  call  him 
away,  she  would  have  her  own  property  to  depend  on,  sufficient 
to  make  her  independent  while  she  lived.  The  copy  of  the  deed, 
as  well  as  the  letter,  was  in  the  decedent's  handwriting.  It  was 
held,  reversing  the  judgment  of  the  trial  court,  that  the  deed  itself 
could  not  be  admitted  to  probate  as  a  will,  because  it  contained  no 
words  of  testamentary  character,  but  that  the  copy  and  the  letter, 
though  neither  in  itself  constituted  a  will,  because  the  one  was  not 
testamentary  in  character  and  the  other  had  no  date,  together  as 
one  complete  document,  clearly  showed  an  animus  testandi,  and  were 
entitled  to  admission  to  probate.  Where  a  paper  is  written  on  the 
reverse  side  of  an  olographic  will,  not  effectively  executed,  and  is 
styled,  "codicil,''  this  word  imports  a  reference  to  some  prior  paper 
as  a  will,  and  if  executed  with  the  formalities  requisite  for  a  will, 
makes  good  an  invalidly  executed  olographic  will  written  on  such  re- 
verse side:   Estate  of  Plumel,  151  Cal.  57,  121  Am.  St.  Kep.   100. 

The  Statutes  Seem  Unanimous  in  Requiring  Olographs  to  be  Dated; 
failure  to  respect  this  requirement  is  fatal  to  the  will:  In  re  Martin's 
Will,  58  Cal.  530;  Fuentes  v.  Gaines,  25  La.  Ann.  85;  Hcffner  v. 
Heffner,  48  La.  Ann.  1088,  20  South.  281.  Though  all  the  rest  of 
it  is  conceded  to  be  in  the  handwriting  of  the  testator,  if  the  date 
is  proved  to  have  been  written  by  another,  it  must  be  denied  ad- 
mission to  probate:  Estate  of  Behrens,  130  Cal.  416,  62  Pac.  603.     The 


438  Coffky's  Probate  Decisions,  Vol.  1. 

whole  of  the  date  must  be  in  the  testator's  handwriting;  and  if 
he  writes  his  will  on  a  letterhead,  using  the  figures  printed  thereon 
as  part  of  the  date  and  without  considering  such  figures,  the  date 
cannot  be  known,  the  will  cannot  be  supported  as  an  olographic  will: 
Succession  of  Eobertson,  49  La.  Ann.  868,  62  Am.  St.  Eep.  672,  26 
South.  586.  See,  too,  Estate  of  Plumel,  151  Cal.  77,  121  Am.  St. 
Eep.  100. 

Abbreviations  in  the  Date  are  permissible  if  they  are  such  as 
are  in  common  use,  easily  understood,  and  leave  no  question  of  the 
date  intended  to  be  expressed.  The  words,  "New  York,  Nov. 
22/97,"  constitute  a  good  dating.  "In  this  case  the  expression  un- 
der consideration  is  entirely  unambiguous,  and  to  everyone  familiar 
with  the  usage  of  language  it  expresses  the  month,  day  and  year  as 
clearly  as  though  these  had  been  written  out  in  full.  It  is,  or  rather, 
during  the  century  just  expired,  it  was,  the  common  usage — univer- 
sally understood — to  designate  the  year  by  the  last  two  figures  of 
its  number,  omitting  the  figures  designating  the  century":  In  re 
Lakemeyer's  Estate,  135  Cal.  28,  87  Am.  St.  Eep.  96,  66  Pac.  961. 

A  Dating  is  not  Sufficient  to  satisfy  the  requirements  of  the  stat- 
ute if  it  omits  either  the  day,  the  month  or  the  year:  Fuentes  v. 
Gaines,  25  La.  Ann.  85;  Heffner  v.  Heffner,  48  La.  Ann.  1088,  20 
South.  281;  though  when  the  existence  of  the  will  is  in  issue,  as 
where  its  admission  to  probate  as  a  lost  will  is  sought,  it  is  sufficient 
that  the  testimony  shows  that  it  was  dated  on  some  day  in  a  desig- 
nated month  and  year  without  specifying  that  day,  if  the  inference, 
supported  by  the  testimony,  is  that  the  day  was  specified  in  the 
will,  though  the  witnesses  testifying  do  not  remember  what  it  was: 
Gaines  v.  Lizardi,  3  Woods,  77  Fed.  Cas.  No.  7175.  If  a  will  in 
the  handwriting  of  the  testator  closes  with  the  proper  dating  and 
signing,  and  is  followed  by  a  further  clause  signed  by  the  testator, 
but  bearing  no  separate  date,  such  clause  will  be  presumed  to  have 
been  written  at  the  same  time  as  the  original  will,  and  therefore  the 
whole  will  be  deemed  to  be  properly  dated:  Lagrave  v.  Merle, 
5  La.  Ann.  278,  52  Am.  Dec.  589.  It  is  not  essential  that  the  date 
stated  truly  represented  the  time  when  the  will  was  written  or 
signed.  An  obvious  mistake  in  this  respect  is  not  fatal  to  the  will: 
Estate  of  Fay,  145  Cal.  82,  104  Am.  St.  Eep.  17,  78  Pac.  340.  Whether 
his  action  is  due  to  a  mistake  or  not,  the  testator  may  adopt  as  the 
date  of  his  will  any  date  previously  written  by  him:  Estate  of 
Clisby,  145  Cal.  407,  104  Am.  St.  Eep.  58,  78  Pac.  964. 

The  Place  Where  the  Date  must  be  Written  is  not  prescribed  by 
the  statute,  and  hence  it  is  not  material  in  what  part  of  the  instru- 
ment it  appears:  Zerega  v.  Percival,  46  La.  Ann.  590,  15  South.  476. 
It  may  follow  the  signature:  Succession  of  Fuqua,  27  La.  Ann.  271; 
or  even  be  found  on  a  piece  of  paper  different  from  that  which  ex- 
presses the  testamentary  purpose  and  to  which  the  signature  of  the 


Estate  op  Fay,  439 

testator  is  written.  Thus,  where  a  testator  sent  to  his  sister  what 
purported  to  be  a  copy  of  a  deed  conveying  certain  property  to  her, 
dated  April  26,  1881,  and  acknowledged  on  the  day  following,  in- 
closed in  a  letter  bearing  no  date,  but  showing  his  intention  that 
she  should  have  such  property  at  his  death,  such  copy  and  letter 
were  together  held  to  constitute  an  olographic  will,  and  to  justify 
such  holding,  it  was  necessary  for  the  court  to  adopt,  and  it  did 
adopt,  the  date  as  expressed  in  such  copy  as  the  date  of  the  olo- 
graphic will:    Estate  of  Skerrett,  67  Cal.  585,  8  Pac.  181. 

Necessity  for  Signature. — At  the  common  law  a  will  of  personal 
property  in  the  testator's  handwriting  was  good,  though  without 
his  signature  and  unwitnessed,  and  in  some  of  the  states  a  common- 
law  will  is  still  sufficient  in  exceptional  circumstances,  as  when  made 
by  a  soldier  in  actual  service,  or  a  mariuer  at  sea,  for  the  purpose 
of  disposing  of  his  wages  and  personal  estate:  Leathers  v.  Green- 
acre,  53  Me.  561.  The  general  rule,  however,  is  that  wills  must  be 
signed  by  the  testator,  and  special  reasons  exist  for  the  rule  and 
its  enforcement  when  the  will  is  not  witnessed.  The  absence  of  the 
testator's  signature  upon  what  is  claimed  as  an  olographic  will  must 
be  regarded  as  fatal,  except  in  cases  where  the  common  law  has  been 
left  in  force  as  to  soldiers  and  sailors. 

The  Statutes  Requiring  the  Signing  of  Wills  by  the  testator  have 
rarely,  if  ever,  declared  what  constitutes  a  signing  or  signature,  and, 
while  there  are  many  decisions  upon  that  subjec^t  in  its  relation  to 
other  wills,  there  are  few  indicating  whether  the  results  reached  are 
equally  applicable  to  wills  which  have  been  admitted  to  probate  only 
on  the  ground  that  they  are  olographic.  The  question  whether  a 
signature  to  a  will  may  consist  of  the  testator's  mark  cannot  arise, 
because  the  existence  of  the  balance  of  the  will  in  his  handwriting 
demonstrates  his  ability  to  write,  and  hence  the  absence  of  any  neces- 
sity for  using  a  mark.  There  is  certainly  no  need  of  his  writing  his 
name  in  full,  but  it  is  doubtless  sufficient  that  the  signature  written 
is  that  ordinarily  used  by  him  in  other  business  transactions.  It 
may  probably  consist  of  initials,  or  even  of  a  fictitious  or  assumed 
name.  ' '  The  title  by  which  a  man  calls  himself  and  is  known  in  the 
community  is  his  name,  whether  it  be  the  one  he  inherited  or  had 
originally  given  him  or  not.  So  the  form  which  a  man  customarily 
uses  to  identify  and  bind  himself  in  writing  is  his  signature,  what- 
ever shape  he  may  choose  to  give  it.  Nor  is  there  any  fixed  require- 
ment how  much  of  the  full  name  shall  be  written."  Hence,  an  olo- 
graphic will  signed  only  by  the  testatrix's  given  name  "Harriet" 
was  upheld:  Estate  of  Knox,  131  Pa.  220,  17  Am.  St.  Eep.  798,  18 
Atl.  1021,  6  L.  R.  A.  353. 

The  Place  of  the  Signature  is  not  Material  unless  made  so  hy  stat- 
ute. It  need  not  be  at  the  end:  Estate  of  Stratton,  112  Cal.  513, 
44  Pac.  1028;    Estate  of  Camp,  134  Cal.  233,  66  Pac.  227.      It  is  true 


MO  Coffey's  Probate  Decisions,  Vol.  1. 

that  the  name  of  the  testator  written  in  the  body  of  the  will  can- 
not be   treated  as  his  signature  when  not   intended  to  be   such:     In 
re  Armant's   Will,   43   La.   Ann.   310,  26  Am.   St.   Eep.   193,   9   South. 
50;     and   that   where,   as   in   Virginia,   the   statute   declares   that    the 
name  of  the  testator  written  in  a  will  shall  not  be  regarded  as  his 
signature   unless   there   is   something   on   the   face   of   the   paper  indi- 
cating that  it  was   intended   to  be  such,   the   mere   presence   of   such 
name  in  the  will  in  his  handwriting  cannot  be  accepted  as  his  sign- 
ing or  signature  in  the  absence  of  any  such  intention  so  appearing: 
Waller  v.  Waller,   1   Gratt.  454,  42  Am.  Dec.  564;    Eamsay  v.  Eam- 
say,  13  Gratt.  664,  70  Am.  Dec.  438;    Eoy  v.  Eoy,  16  Gratt.  418,  84 
Am.  Dec.  696.     Still,  the  general  rule  is,  in  the  absence  of  some  statu- 
tory  prohibitions,    that    the    name    of    the    testator    written    by    him, 
either  in   the   introductory  or  closing  clause   of   his   will,   constitutes 
his  signature:    In  re  Camp's  Estate,  134  Cal.  233,  66  Pac.  227;    Law- 
son  V.   Dawson's   Estate,   21   Tex.   Civ.   App.   361,  53   S.   W.   64;     and 
even  under  the  Virginia  statute,  the  concluding  clause  of  a  will  stat- 
ing "I,  William  Dinning,  say  this  is  my  last  will  and  testament," 
sufficiently  indicates  that  the  name   so   written  was  intended  as   the 
signature  of  the  testator,  and  entitles  the  will  to  admission  to  probate 
as  olographic:    Dinning  v.  Dinning,  102  Va.  467,  46  S.  E.  473.     Not  at 
all    reconcilable    with    the    foregoing    statements    is    the    decision    in 
Booth's  Estate,   127  N.  Y.   109,  24  Am.   St.  Eep.  429,   27  K  E.   826, 
12    L.    E.    A.   452.      The    will    there    in    question    was    witnessed    and 
attested  by  two   persons  and  was  wholly  in   the  handwriting  of   the 
testatrix,    and    though    not    otherwise    signed    by    her,    contained    her 
name  in  the   ojaening   clause  and  also   her   maiden  name  at   the   end. 
One    of    the    subscribing   witnesses    testified    that    the    testatrix    said 
to   her:     "This  is   my  will;     take  it   and  sign   it."      The   court   held 
that    this   evidence   was   insufficient    to    sustain   a   finding   or   verdict 
that    the    testatrix's    name   written   by   her   in    the   first    line    of   the 
document    was    there    written    with    the    intent    that    it    should    have 
effect   as   her   signature   in    the   final    execution    of   the   will,    saying: 
"Whenever   the   name   of   a    testator    appears,   whether   in    the   body 
or   at   the   end   of   a  will,   it   must   have   been  written   with   intent   to 
execute   it,   otherwise   it   is   without   force.      When   a   testator   or   the 
maker  of  a  contract  subscribes  it  at  the  end  and  in  the  manner  in 
which   legal    instruments     are     usually    authenticated,    a   presumption 
arises  that   the   signature  was  affixed  for   the   purpose  of   creating   a 
valid   instrument.      But    when   the   name   is   written   near   the    begin- 
ning   of    the    document,    where,    as    a    rule,    names    are    inserted    by 
way  of  description  of  the  person  who  is  to  execute  it,  and  rarely  as 
signatures,  it  must,  before  it  can  be  held  to  have  been  inserted  for 
the   purpose   of   validating   the   instrument,   be   proved   to   have   been 
written  with  that  intent." 

The  Following  Summary  of  the  French  Doctrine  upon  the  subject 
appears   to   meet   the   approval   of    the   supreme    court    of   Louisiana: 


Estate  of  Fay.  441 

"Although  the  natural  place  of  the  signature  be  at  the  end  of  the 
act,  because  it  expresses  the  final  approval  given  by  the  testator  to 
the  dispositions  of  last  will  which  he  has  made,  it  is,  however,  ad- 
mitted that  the  writing  by  the  testator  of  his  name  toward  the 
end  of  the  act  may  be  considered  as  a  signature,  if  it  is  placed  after 
all  the  dispositions  constituting  the  testament.  It  does  not  matter 
that  after  the  name  there  may  follow  some  words  connected  with  it, 
if  the  words  thus  following  are  superfluous  or  useless. ' '  In  the  case 
whence  this  quotation  is  made  it  appeared  that  the  will  in  question 
commenced  with  a  caption  as  follows:  "Testament  d'Aglae  Armant. " 
The  court  was  of  the  opinion  that  the  name  as  thus  written  could 
not  be  accepted  as  signature,  partly  upon  the  ground  that  it  v/as 
not  written  in  the  ordinary  manner  of  a  signature  and  was  ' '  without 
a  paragraph,"  the  evidence  showing  that  the  testatrix  ordinarily  em- 
ployed one,  and  further,  ' '  that  the  coupling  of  the  '  d '  with  the 
name  in  itself  excludes  the  idea  of  its  being  intended  as  a  signature. ' ' 
The  decision  was  also  partly  upon  another  ground,  which  the  court 
thus  expressed:  "Even  apart  from  the  name's  not  being  at  the  end 
of  the  testament,  we  think  the  proof  does  not  show  that  she  intended 
to  sign  at  all.  It  simply  shows  that  she  did  not  think  or  know 
that  a  signature  was  essential.  If  she  had  known  that  it  was  neces- 
sary that  the  testament  should  be  signed,  it  is  impossible  to  conceive 
how,  in  so  important  a  matter,  she  should  have  acted  so  ambiguously 
and  so  differently  from  the  course  universally  pursued  by  her  in 
signing  other  acts  and  documents  of  every  description.  The  sim- 
ple fact  is,  she  did  not  know  that  a  signature  was  necessary,  and 
therefore  did  not  sign.  Her  mistake  in  this  respect  is  unfortunate 
in  the  interests  of  justice,  but  it  cannot  save  the  will." 

Necessity  for  Witnessing  and  Attesting. — The  authorities,  in  so 
far  as  they  speak  upon  the  subject,  indicate  that  the  recognition 
of  olographic  wills  does  not  exempt  them  from  the  general  provisions 
contained  in  the  statutes  respecting  the  manner  of  witnessing  and 
attesting  wills.  Hence,  in  the  absence  of  any  statutory  provision  to 
the  contrary,  olographic  wills  must  be  published,  witnessed  and  at- 
tested in  the  same  manner  as  others,  but  criticism  of  the  term  of  what 
is  claimed  to  be  a  sufficient  publication  need  not  be  so  severe  as 
where  the  will  is  not  wholly  in  the  testator's  handwriting:  Trus- 
tees v.  McKinstry,  75  Md.  188,  23  Atl.  471;  Matter  of  Application 
of  Becket,  103  N.  Y.  167,  8  N.  E.  506;  Matter  of  Hunt,  110  N.  Y. 
281,  18  N.  E.  106;  Matter  of  Turrell,  47  App.  Div.  560,  62  N.  Y. 
Supp.  1053;  166  N.  Y.  330,  59  N.  E.  910;  In  re  Aker's  Will,  173 
N.  Y.  620,  66  N.  E.  1103,  74  App.  Div.  461,  77  N.  Y.  Supp.  643; 
Neer  v.  Cowhick,  4  Wyo.  49,  31  Pac.  862,  18  L.  E.  A.  588.  In  many 
of  the  states,  however,  olographic  wills  need  not  be  published  nor 
witnessed,  nor  otherwise  attested  than  by  the  testator's  signature.  In 
other  words,  such  a  will  is  entitled  to  admission  to  probate  on  proof 
in  the  manner  required   by  statute  that   it   is  wholly  written,   dated, 


442  Coffey's  Probate  Decisions,  Vol.  1. 

and  signed  in  the  handwriting  of  the  testator:  Ariz.  Eev.  Stats.,  ed, 
1887,  sees.  3234,  3235;  Cal.  Civ.  Code,  sec.  1277;  Idaho  Eev.  Stats., 
sec.  5728;  Scott  v.  Harkness,  6  Idaho,  736,  59  Pac.  566;  Toebbe  v. 
Williams,  80  Ky.  661;  Webster  v.  Lowe,  107  Ky.  293,  53  S.  W,  1030; 
La.  Civ.  Code,  arts.  1581,  1588;  Williams  v.  Hardy,  15  La.  Ann.  286; 
Buffington  v.  Thomas  (Miss.),  36  South.  1039;  Barney  v,  Hays,  11 
Mont.  571,  28  Am.  St.  Eep.  495,  29  Pac.  282;  Outlaw  v.  Hurdle,  1 
Jones  (N.  C),  150;  Alston  v.  Davis,  118  N.  C.  202,  24  S.  E.  15; 
Estate  of  Knox,  131  Pa.  220,  17  Am.  St.  Eep.  798,  18  Atl.  1021,  6 
L.  E.  A.  353;  Eegan  v.  Stanley,  11  Lea,  316;  Lawson  v.  Davi- 
son's Estate,  21  Tex.  Civ.  App.  361,  53  S.  W.  64;  Dinning  v.  Dinning, 
102  Va.  467,  46  S.  E.  473;    West  Va.  Laws,  ed.  1882,  c.  84,  sec.  3. 

A  Will,  Though  Olographic,  may  be  Followed  by  an  Attestation 
Clause,  or  may  otherwise  indicate  that  the  testator  intended  to 
have  it  witnessed  and  attested  in  the  same  manner  as  if  not  olo- 
graphic. In  such  circumstances,  if  there  are  no  subscribing  witnesses, 
or  not  a  sufficient  number  of  them,  or  one  is  incompetent  to  act  as 
such,  it  may  be  claimed  that  the  testator  had  designed  to  complete 
the  execution  of  the  will  as  if  it  were  not  olographic,  and  that,  be- 
cause of  his  failure  to  do  so,  it  cannot  be  admitted  to  probate. 
The  answers,  however,  have  been  uniform  to  the  effect  that  if  th^ 
will  was  executed  in  the  manner  required  of  olographic  wills,  it  was 
entitled  to  admission  to  probate,  notwithstanding  the  fact  that  the 
testator  intended  to  execute  it  in  the  presence  of  subscribing  wit- 
nesses, and  believed  such  presence  essential  to  its  validity:  In  re 
Soher,  78  Cal.  477,  21  Pac.  8;  Toebbe  v.  Williams,  80  Ky.  661; 
Andrew's  Exrs.,  12  Mart.  (O.  S.)  713;  Succession  of  Eoth,  31  La. 
Ann.  315;  Brown  v.  Beaver,  48  K  C.  516,  67  Am.  Dec.  255;  Hill 
V.  Bell,  61  N.  C.  122,  93  Am.  Dec.  583;  Allen  v.  Jeter,  6  Lea, 
672;    Perkins  v.  Jones,  84  Va.  358,  10  Am.  St.  Eep.  863,  4  S.  E.  833. 

A  testamentary  document  in  the  handwriting  of  the  testator, 
and  having  subscribing  witnesses,  may  be  proved  either  as  an  olo- 
graphic or  as  an  attested  will:    Estate  of  Dama,  4  Cof.  Pro. 

The  Place  Where  the  Will  was  Lodged  or  Found  is  generally  not 
material,  but  in  two  of  the  states  it  must  have  been  found  among 
the  valuable  papers  and  effects  of  the  decedent,  or  have  been  by 
him  lodged  with  another  person  for  safekeeping:  Winstead  v.  Bow- 
man, 68  N.-  C.  170;  Tate  v.  Tate,  11  Humph.  464.  The  meaning 
of  these  requirements  has  not  been  much  litigated.  The  decedent 
may  have  two  or  more  places  in  which  he  keeps  papers  and  valuables, 
and  one  may  be  so  far  superior  to  the  other,  or  so  much  more  resorted 
'  to  by  him  as  a  depository  of  his  valuables  that  an  olographic  will 
found  in  the  other  will  not  be  admitted  to  probate:  Little  v.  Lock- 
man,  49  N.  C.  (4  Jones)  494.  Nevertheless,  the  circumstances  must 
be  rare  in  which  the  courts  will  consider,  as  between  two  places  where 
valuable  papers  and  effects  are  kept,  which  is  the  only  one  in  which 


Estate  of  Fat.  443 

an  olographic  will  may  be  safely  placed,  and  if  found  in  either  place, 
it  will  generally  not  be  refused  probate  because  the  court  deems  the 
other  the  safer  place  or  the  one  which  the  decedent  has  been  in  the 
habit  of  leaving  the  more  valuable  papers  and  effects:  Winstead  v. 
Bowman,  68  N.  C.  170. 

The  depository  may  be  a  drawer  in  a  desk  or  bureau  (Hughes  v. 
Smith,  64  N.  C.  493;  Harrison  v.  Burgess,  8  N.  C.  (1  Hawks  Eq.) 
384),  or  a  trunk  left  for  safekeeping  with  a  friend  (Hill  v.  Bell,  61 
N.  C.  (Phil.  L.)  122,  93  ^m.  Dec.  583),  if  therein  are  left  the  valuable 
papers  and  effects  of  the  decedent.  Of  course,  the  real  question  is, 
whether  from  the  place  where  the  will  is  found,  the  inference  is 
reasonable  that  the  testator  left  or  caused  it  to  be  left  there  as  and 
for  his  olographic  will:  Marr  v.  Marr,  2  Head,  303;  Hooper  v.  Mc- 
Quary,  5  Cold.  129;  Douglass  v.  Harkrender,  3  Baxt.  114.  The  sur- 
roundings and  habits  of  one  person  may  be  such  as  to  make  it  ex- 
ceedingly improbable  that  he  used  a  depository,  the  use  of  which  in 
the  case  of  another  person  would  be  entirely  reasonable.  It  is  suf- 
ficient that  the  testator  kept  or  preserved  his  will  in  the  same  man- 
ner that  he  kept  other  valuable  papers:  Winstead  v.  Bowman,  68  N. 
C.  170;  Tate  v.  Tate,  11  Humph.  464.  As  to  the  will  itself,  it 
need  not  be  a  separate  or  formal  document,  but  may  be  written  in 
a  book  of  accounts,  if  such  book  is  found  with  other  valuable 
papers  of  the  decedent:  Brown  v.  Eaton,  91  N.  C.  26.  From  the 
finding  of  the  will  among  the  papers  of  the  decedent,  it  will  be  pre- 
sumed that  he  placed  it  there  on  the  day  it  bears  date:  Sawyer  v. 
Sawyer,   52   N.   C.    (7  Jones)    134. 

By  valuable  papers  is  not  necessarily  meant  deeds,  important  con- 
tracts, etc.,  or  papers  of  great  pecuniary  value,  but  simply  such 
papers  as  the  decedent  seems  to  have  regarded  as  important  to  him 
and  to  the  preservation  of  which  he  has  given  the  same  atten- 
tion as  to  his  olographic  will:  Marr.  v.  Marr,  2  Head,  303.  But  an 
olograph  is  not  found  among  valuable  papers  when  it  is  found  in  box 
in  which  the  testator  kept  stamps  and  stationery  belonging  to  a  post- 
office  of  which  he  had  charge,  while  he  kept  his  deeds,  notes  and  the 
like  in  a  trunk  at  his  residence,  some  distance  away:  Brogan  v.  Bar- 
nard, 115  Tenn.  260,  112  Am.  St.  Eep.  822,  90  S.  W.  858. 

The  mere  finding  of  a  will  among  the  papers  of  a  third  person 
is  not  sufficient  to  show  that  it  had  been  left  with  him  by  the  testa- 
tor for  safekeeping:  St.  John's  Lodge  v.  Callender,  26  N.  C.  (4  Ired.) 
335.  The  person  with  whom  the  will  is  deposited  may  be  the  wife 
of  the  testator:  Harrison  v.  Burgess,  8  N.  C.  (1  Hawks  Eq.)  384. 
Where  the  will  is  a  part  of  a  letter  written  by  the  testator  to  an- 
other, it  is  not  necessary  that  the  latter  should  have  received  any 
instructions  from  the  former  respecting  its  preservation  or  safekeep- 
ing:   Alston  V.  Davis,  118  N.  C.  202,  24  S.  E.  15. 


444  Coffey's  Pkobate  Decisions,  Vol.  1. 


Estate  of  WILLIAM  ARTHUR   GREEN,   Deceased. 

[No.    5,719;     decided   April    7,    1888.] 

Homestead — Residence   of  Deceased — Conclusiveness   of  Finding. — 

Where,  upon  the  admission  of  a  will  to  probate,  the  legal  residence 
and  domicile  of  testator  is  found  as  a  fact,  and  certified  and  judi- 
cially determined,  the  question  is  placed  outside  the  pale  of  contro- 
versy thereafter.  So  held,  upon  an  executor's  opposition  to  an  ap- 
plication for  a  homestead  by  the  testator's  widow. 

Homestead — Nature  of  Right. — The  right  to  a  homestead  is  wholly 
statutory;  it  cannot  be  asserted  as  a  natural  right.  The  law-making 
power  is  competent  to  repeal  the  provisions  of  the  statute  regu- 
lating the   right,  and   thereafter   homesteads  would   be  unknown. 

Homestead — Probate  and  Voluntary  Distinguished. — There  is  a 
distinction  between  a  homestead  under  section  1262,  Civil  Code,  and 
the  homestead  selected  by  the  court  in  the  administration  of  a  de- 
cedent's estate.  The  latter  is  governed  wholly  by  the  provisions  of 
section  1465,  Code  of  Civil  Procedure.  In  the  case  of  a  homestead 
selected  in  the  decedent 's  lifetime,  the  claimant 's  title  accrues  by 
survivorship;  as  to  a  homestead  selected  in  the  administration  of 
decedent's  estate,  the  claimant's  title  accrues  only  upon  the  de- 
cree of  the  court  or  judge  setting  it   apart. 

Homestead. — The  Probate  Court  has  no  Discretion  to  deny  an  ap- 
plication for  a  homestead  by  the  family  of  a  decedent,  presented 
under  section   1465,  Code  of  Civil  Procedure. 

Homestead — Testamentary  Power. — The  power  or  duty  of  the  court 
to  set  apart  a  homestead  for  the  family  of  a  decedent  is  not  lim- 
ited by  the  fact  that  the  decedent  disposed  of  his  property  by  will. 

Homestead. — The  Power  of  Testamentary  Disposition  is  Given  and 
defined  by  statute,  and  is  subordinate  to  the  authority  vested  in  the 
probate  court  to  appropriate  property  for  the  support  of  testator's 
family,  including  a  homestead,  and  for  the  payment  of  debts. 

Homestead. — The  Right  of  a  Widow  to  have  a  Homestead  Set  Apart 

to  her  from  the  estate  of  her  former  husband  must  be  determined 
from  the  facts  as  they  exist  at  the  date  of  the  action  of  the  court. 

Homestead. — The  Executor's  Answer  to  the  Widow's  Application 
for  a  homestead  alleged  that  two  adult  daughters  (one  being  married), 
referred  to  in  the  widow 's  petition,  were  always  considered  and 
treated  as  part  of  the  decedent 's  household  and  family.  The  court 
ignored  this  claim  for  the  daughters,  and  set  apart  the  homestead 
to  the  widow  alone. 

Homestead. — In  this  Case  the  Widow  Applied  to  have  a  Home- 
stead set   apart   to   her,  and   the   executor  answered,   setting  up   that 


Estate  of  Green.  445 

decedent's  residence  and  home  was  in  England,  where  he  died  and  left 
a  homestead,  which  he  devised  to  his  wife  and  daughters.  The  court 
found  on  the  probate  of  the  will  here  that  the  decedent  had  a  domicile 
and  legal  residence  in  California,  and  was  only  temporarily  in  England 
for  his  health;  and  held  that  the  applicant,  being  the  decedent's  widow 
at  the  date  of  the  application,  and  a  resident  of  the  state,  and  there 
being  property  suitable  for  a  homestead,  all  the  conditions  required  by 
the  statute  existed  to  entitle  her  to  a  homestead. 

Homestead — Separate  Property.— In  this  case  the  court  ordered 
that  the  property,  being  decedent 's  separate  estate,  be  set  apart  only 
during  the  applicant's  widowhood. 

Homestead — Value  of  Premises. — In  this  case  the  court  held  that 
the  value  of  the  premises  ordered  set  apart  as  a  homestead  should 
be  taken  as  of  the  date  of  the  application;  any  subsequent  increase 
in  value  being  immaterial. 

This  was  an  application  by  the  widow  to  have  a  homestead 
selected  and  set  apart  by  the  court.  The  executor,  R.  H. 
Lloyd,  filed  two  answers  to  the  petition;  the  first  answer 
was  the  same  as  the  second  one,  except  that  it  left  out  an 
important  special  defense  attempted  to  be  made  by  the 
executor,  viz. :  ( 1 )  that  it  was  the  intent  and  expressed  wish 
of  the  testator  that  the  legacy  made  by  his  wife  should  be 
in  lieu  of  all  rights  she  might  claim  against  his  estate;  (2) 
that  it  was  testator's  express  desire  that  his  wife  should  have 
a  homestead  out  of  his  estate.  After  argument  upon  a 
motion  and  demurrer  addressed  to  this  special  defense,  Mr. 
W.  S.  Wood,  counsel  for  the  executor,  asked  leave  to  withdraw 
the  answer,  and  filed  a  new  one  (being  the  one  referred  to 
in  the  court's  opinion),  which  omitted  these  special  allega- 
tions. Throughout  the  entire  proceedings  had  on  the  home- 
stead petition,  the  attitude  taken  by  the  executor,  Lloyd,  was 
objected  to,  it  being  claimed  that  the  positions  he  took,  and  the 
defenses  he  attempted  to  set  up,  and  the  manner  in  which  he 
and  his  counsel  contested  the  matter,  were  that  of  a  partial, 
prejudiced  and  interested  party,  and  that  he  really  repre- 
sented the  daughters  of  testator,  wlio  were  opposed  to  the 
widow;  that  an  executor's  duty  required  him  to  be  impartial 
and  take  no  sides  in  a  controversy^  further  than  to  offer  such 
information  as  he  might  have,  for  the  benefit  and  instniction 
of  the  court ;  and  that  he  was  not  interested  to  defeat  the 
applicant  out  of  a  homestead,  where  he  made  no  denial  of 


446  Coffey's  Probate  Decisions,  Vol.  1. 

her  status  as  a  widow,  or  the  fact  that  no  homestead  had 
been  actually  selected  in  decedent's  lifetime.  The  court,  in 
its  opinion  below,  calls  attention  to  this  objection  made  to 
the  attitude  of  the  executor;  but  elects  to  consider  the  facts 
independently  of  the  objection. 

After  filing  of  the  opinion  the  question  came  up  on  pres- 
entation of  findings  prepared  for  the  widow,  as  to  what  the 
extent  of  her  estate  should  be,  and  the  court  refused  to 
grant  any  other  limitation  than  for  widowhood. 

The  executor  further  opposed  the  setting  apart  of  the 
property  selected  by  the  court,  upon  the  ground  that  since 
the  appraisement  the  land  had  increased  in  value.  But  the 
court  held  that  the  date  of  the  filing  of  the  application  was 
the  period  to  be  considered,  and  not  the  time  of  setting 
apart. 


Timothy  J.  Lyons,  for  applicant. 
William  S.  Wood,  for  executor,  opposing. 


COFFEY,  J.  This  is  an  application  by  Julia  Green,  the 
widow  of  William  Arthur  Green,  deceased,  to  have  a 
homestead  set  apart  by  the  court  for  her  use. 

The  petition  recites  that  letters  testamentary  were  issued 
out  of  this  court  on  December  7,  1886,  to  R.  H.  Lloyd,  one  of 
the  executors  named  in  the  last  will  of  decedent,  who  imme- 
diately entered  upon  the  discharge  of  his  duties  as  such 
executor,  and  has  ever  since  continued  to  act  in  that  capacity ; 
that  the  executor  has  published  notice  to  creditors  according 
to  order  of  the  court ;  that  he  has  made  and  returned  herein 
the  inventory  and  appraisement  as  required  by  the  statute; 
that  it  appears  by  the  said  inventory  and  appraisement  that 
the  whole  estate  of  the  decedent  is  about  $270,000,  yielding 
a  monthly  income  of  about  $1,200  net;  that  the  executor 
claims  the  whole  estate  to  be  separate  property  of  decedent, 
but  as  to  this  the  applicant  has  no  information  other  than 
the  statement  of  the  said  executor ;  that  the  petitioner  is  the 
surviving  wife  of  the  decedent,  and  that  his  family  consisted 
and  consists  of  herself  alone,  who  was,  at  the  date  of  the 
petition,  temporarily  residing  in  England  (but  who  has  since 


Estate  of  Green.  447 

returned  to  California,  and  was  at  the  time  of  the  hearing 
actually  residing  in  San  Francisco).  The  decedent  also  left 
him  surviving  two  daughters,  Amy  Eliza  Green  and  Frances 
Peddar,  wife  of  Sydney  Hampden  Peddar,  of  London, 
England,  both  of  whom  are  above  the  age  of  legal  majority 
by  the  law  of  California,  as  well  as  by  the  law  of  England, 
in  which  last-named  country  they  are  both  resident,  accord- 
ing to  the  information  and  belief  of  the  applicant;  that 
at  the  time  of  his  death,  and  continuously  and  uninter- 
ruptedly for  many  years  immediately  prior  thereto,  the 
decedent  was  a  resident  of  and  had  his  domicile  in  the  state 
of  California,  as  well  also  that  of  his  family,  which  family 
consisted  at  the  time  of  his  death  solely  of  himself  and  the 
petitioner,  but  that  he  died  in  England,  where  he  was  then 
temporarily  residing  on  account  of  and  for  the  benefit  of 
his  health ;  that  his  surviving  wife,  the  petitioner,  constituting 
his  said  family,  has  not  changed  the  California  domicile, 
w^hich  she  had  and  retained  with  decedent  at  the  time  of 
his  death,  but  has  always  and  continuously  retained  and  still 
retains  her  California  domicile  aforesaid,  and  at  the  date  of 
the  hearing  was  actually  a  resident  and  domiciled  in  the 
city  and  county  of  San  Francisco,  State  of  California;  that 
no  homestead  was  selected,  designated  or  recorded  in  the 
lifetime  of  the  decedent,  either  by  him  or  by  the  petitioner, 
and  that  no  homestead  has  been  selected,  designated  or  re- 
corded, or  set  apart  by  this  court  out  of  the  estate  of  the 
decedent  now  being  administered  upon  herein,  nor  has  any 
property  of  any  kind  been  set  apart  or  ordered  set  apart  by 
this  court  out  of  decedent's  estate.  The  petition  proceeds  to 
set  forth  certain  parcels  of  property  alleged  to  be  suitable 
for  the  purposes  of  homestead,  out  of  which  she  prays  the 
court  to  select,  designate  and  set  apart  to  her  such  home- 
stead. To  this  petition  the  executor,  R.  H.  Lloyd  makes 
answer  in  substance :  That  he  was  the  attorney  for  the  dece- 
dent for  a  long  time  prior  to  his  marriage  to  the  applicant 
and  up  to  the  time  of  his  death,  and  as  such  attorney  was 
familiar  with  the  property  owned  by  the  decedent;  that  all 
said  property  was  owned  and  possessed  by  said  deceased  prior 
to  his  marriage  with  the  applicant;  that  the  family  of  the 


448  Coffey's  Probate  Decisions,  Vol.  1. 

decedent  did  not  consist  solely  of  the  applicant;  that  he  had 
an  unmarried  daughter,  Amy  Eliza  Green,  and  also  a  mar- 
ried daughter,  Frances  Peddar,  whom  he  had  always  con- 
sidered and  treated  as  part  of  his  household,  and  was  con- 
stantly aiding  and  assisting  in  supporting  and  maintaining 
them,  and  said  daughters  and  petitioner  constituted  and  were 
his  family;  that  the  applicant  is  and  has  been  ever  since 
marriage  a  resident  of  England;  that  long  prior  to  the  death 
of  decedent  he  purchased  a  homestead  at  a  place  called 
Wyresdale,  in  England,  and  fitted  and  furnished  the  same, 
and  took  up  his  residence  there,  and  was  residing  there  at 
the  time  of  his  death ;  that  the  decedent  left  a  last  will  other 
than  that  admitted  to  probate  by  this  court,  specifying  and 
concerning  his  property  and  effects  in  England,  and  in  and 
by  said  last  will  he  devised  to  petitioner  and  his  daughters 
the  said  homestead  with  its  contents,  and  that  the  said 
applicant  was,  at  the  time  of  filing  her  application  herein, 
residing  in  said  homestead  in  England,  and  that  such  was 
her  home  and  her  place  of  residence ;  but  no  homestead  was 
designated  or  recorded  in  this  state  by  the  decedent,  because 
of  the  selection  of  a  homestead  in  England ;  and  that  pending 
these  proceedings,  and  since  the  filing  of  the  petition  for  a 
homestead  herein,  the  said  homestead  in  England  has  been 
sold  and  the  applicant  has  received  or  is  about  to  receive  her 
portion  of  the  proceeds  of  such  sale.  The  counsel  for  the 
applicant  objected  to  the  interference  of  the  executor  in 
this  application,  insisting  that,  as  executor,  he  had  no  part 
to  play  in  this  proceeding,  and  counsel  still  insists  upon  such 
objection ;  but  the  court  has  chosen  to  inquire  fully  into  the 
facts,  notwithstanding  such  objection. 

The  will  admitted  to  probate  in  this  court  December  6, 
1886,  begins  with  the  recital : 

"I,  William  Arthur  Green,  a  resident  of  the  City  and 
County  of  San  Francisco,  State  of  California,  now  tem- 
porarily in  England,  being  of  sound  mind  and  disposing  mem- 
ory, do  make  and  publish  and  declare  this  my  last  will  and 
testament,  in  manner  and  form  following:  (1)  I  declare 
that  all  my  property,  be  it  real,  personal  or  mixed,  is  my 


Estate  of  Green.  449 

separate  property  and  estate,  having  been  acquired  by  me 
prior  to  the  marriage  between  myself  and  wife,  Julia." 

The    instrument    then    proceeds    to    make    various    devises 
and   bequests.     The   petition   of   R.    H.    Lloyd,    one   of   the 
executors  named  in  the  will,  for  the  probate  thereof,  filed 
November  17,  1886,  alleges,  among  other  things,  that  William 
Arthur  Green  died  on  or  about  the  tenth  day  of  November, 
1886,  in  England ;  that  at  the  time  of  his  death  he  was  a 
resident  of  the  city  and  county  of  San  Francisco,  in  said 
state  of  California  (being  temporarily  in  England  at  the  time 
of  his  death)  ;  that  he  left  estate  in  said  city  and  county, 
consisting  principally  of  real  estate  and  a  small  amount  of 
personal  property.     Upon  the  hearing  on  the  sixth  day  of 
December,  1886,  the  court  found  as  a  fact,  and  so  certified 
and  judicially  determined,  that  William  Arthur  Green  died 
on  the  tenth  day  of  November,  1886,  in  England,  where  he 
was  temporarily  for  his  health,  and  at  the  time  of  his  death 
was  a  resident  of  the  city  and  county  of  San  Francisco.     This 
finding  and  judgment  places  the  question  of  the  legal  resi- 
dence and  domicile  of  the  decedent  at  the  time  of  his  death 
outside  the  pale  of  controversy;  and  the  question  is,  there- 
fore, reduced  to  whether  the  fact  of  the  actual  residence  of 
the  deceased  at  the  time  of  his  death  affects  the  status  or 
impairs    the    rights     asserted     by     the     applicant.     William 
Arthur  Green  was  a  native  of  England,  but  a  naturalized 
citizen  of  the  United  States,  and  a  pioneer  of  California, 
having  resided  here  from  the  year  1849,  and  acquired  very 
valuable  possessions,  mainly  in  city  real  property.     It  appears 
he  was  married  twice,  being  separated  by  decree  of  divorce 
from  his  first  spouse,  the  mother  of  the  two  children,  Amy 
Eliza  Green  and  Frances  Peddar.     In  IMay,  1882,  he  departed 
from  the  state  of  California,   in  company  with  his  second 
wife,  the  applicant,  whom  he  had  married  almost  immediately 
prior  to  the  departure.     He   never  returned   to  California. 
He  and  his  wife  never  occupied  any  abode  in  common  in  this 
state.     They  went  to  England,  where  Mr.  Green  purchased 
a  place  and  remained  until  he  died.     Counsel    for    the    re- 
spondent claims  that  whether  the  decedent  purposed  to  change 
his  domicile  is  not   involved   in    the  present   discussion,   but 

Prob.  Dec,  Vol.  1—29 


450  Coffey's  Probate  Decisions,  Vol.  1. 

that  it  is  enough  for  the  purposes  of  this  controversy  to  say 
that  the  decedent  acquired  and  occupied  a  place  of  residence 
in  England,  which  Avas  designed  to  be  permanent  during  his 
stay  there,  and  that  he  and  the  petitioner  used  that  place 
as  their  home  at  the  time  of  his  death;  that  they  had  no 
home  or  residence  in  California ;  they  resided  in  England ; 
and  that  the  determination  of  the  issue  now  before  the  court 
depends  upon  the  fact  of  residence  rather  than  that  of  domi- 
cile. Counsel  contend  that  the  right  to  homestead  is  wholly 
statutory;  no  one  can  assert  it  as  a  natural  right.  The  legis- 
lature might  repeal  all  the  provisions  of  the  act  regulating 
the  right,  and  thereafter  homestead  would  be  unknown.  This 
is  true.  Counsel  further  contend  that  an  examination  of 
the  provisions  of  the  code  and  the  numerous  decisions  in  this 
state  upon  the  question  leads  to  the  inevitable  conclusion 
that  residence  is  the  controlling  principle  of  the  homestead 
claim ;  the  idea  of  the  foundation  of  all  legislation  and  adju- 
dication upon  the  subject  is  to  protect  from  forced  sale 
the  home  in  which  the  family  reside;  it  was  designed  at  the 
outset  to  save  from  creditors  the  roof  which  covers  the  family, 
and  upon  that  all  homestead  legislation  has  been  founded, 
and  that  in  view  of  all  the  legislature  has  done,  and  the 
courts  have  said,  it  must  be  conceded  that  the  whole  purpose 
and  intent  of  both  departments  of  the  government  have  been 
directed  toward  the  protection  of  the  families  of  residents 
of  the  state;  that  it  will  be  conceded  that  a  nonresident  can- 
not claim  the  benefit  of  a  homestead;  and  that  the  first  fact 
necessary  to  a  declaration  is  residence  upon  the  property:  a 
temporary  absence  from  the  home  at  the  time  of  the  filing 
of  the  declaration  destroys  its  force  and  does  away  the  claim 
of  exemption.  Endeavoring  to  enforce  his  proposition,  the 
counsel  presents  numerous  cases;  a  good  sample  of  which  is 
Maloney  v.  Hefer  (Cal.),  15  Pac.  763,  in  which  the  supreme 
court  say:  "It  has  been  frequently  decided  by  this  court 
that  to  constitute  a  valid  homestead  the  claimant  must 
actually  reside  in  the  premises  when  the  declaration  is  made. 
It  -is  true  they  went  away  temporarily  and  were  gone  only 
about  four  months,  but  during  that  time  they  certainly  did 
not  actually  reside  on  any  part  of  the  lot  filed  upon." 


Estate  of  Green.  451 

Counsel  says  it  will  be  seen  that  the  supreme  court  has 
drawn  a  very  clear  line  between  actual  and  legal  residence. 
In  the  case  cited  the  property  claimed  for  a  homestead  was 
the  legal  residence  of  the  family,  and  while  residing  there 
the  wife  executed  the  declaration,  but  before  filing  it  she 
went  away  to  visit  friends  in  another  county,  and  during 
the  absence  the  declaration  was  filed,  and  the  supreme  court 
held  that  such  filing  in  her  temporary  absence  defeated  the 
right. 

Counsel  says  this  decision  points  with  great  force  the  ar- 
gument that  residence,  actual  and  in  fact,  is  the  corner- 
stone of  the  homestead,  and  he  claims  that  the  decision  in 
Maloney  v.  Hefer  is  in  direct  pursuance  of  the  general 
definition  of  homestead  declared  in  the  leading  case  of  Gregg 
V.  Bostwick,  33  Cal.  221,  91  Am.  Dec.  637,  from  which  it 
will  be  gathered  that  residence  is  the  essential  and  primary 
fact  upon  which  the  right  to  a  homestead  is  founded.  Now, 
says  counsel,  it  will  be  conceded  that  William  Arthur  Green 
could  not,  while  residing  in  England,  have  filed  any  valid 
claim  for  a  homestead  covering  any  property  in  this  state, 
and  have  thereby  defeated  the  claims  of  his  creditors,  and 
the  claim  of  the  widow  depends  wholly  upon  the  state  of 
facts  existing  at  the  time  of  Mr.  Green's  death;  her  rights 
cannot  be  any  greater  than  his  were.  She  cannot  be  per- 
mitted to  assert  any  claim  to  a  greater  protection  than  he 
enjoys;  her  rights  all  rest  in  the  fact  that  she  was  his  wife 
and  is  his  widow ;  and  whether  she  is  entitled  to  a  homestead, 
or  must  be  refused  one,  depends  on  the  status  which  he  occu- 
pied at  the  moment  of  his  death,  and  whether  at  that  moment 
he  could  have  claimed  the  right.  In  support  of  this  view, 
counsel  quotes  from  the  Estate  of  Delaney,  37  Cal.  176,  in 
which  the  supreme  court  said :  ' '  The  homestead  and  the  tests 
by  which  it  is  ascertained  are  the  same,  whether  the  question 
arises  between  those  claiming  the  homestead,  or  one  of  them 
and  a » vendee,  a  mortgagee,  a  creditor,  or  the  heirs  of  the 
deceased  husband  or  wife.  There  is  not  one  homestead  as 
against  a  creditor,  and  a  different  one,  when  the  survivor 
asserts  his  or  her  claim,  as  against  the  heirs  of  the  deceased." 


452  Coffey's  Probate  Decisions,  Vol.  1. 

In  the  concluding  portion  of  the  opinion  in  the  case  just 
cited  the  court  makes  a  suggestion,  which  counsel  thinks  of 
considerable  importance  in  this  discussion,  as  showing  that 
the  supreme  court  looked  at  this  question  in  the  light  in  which 
it  is  now  sought  to  place  it  before  this  tribunal.  There  the 
widow  had  petitioned  for  a  homestead,  as  in  the  present  case, 
and  the  supreme  court  remarked :  "  It  is  proper  to  add,  though 
the  point  is  not  made,  that  the  petition  is  radically  defective 
because  it  does  not  state  that  she  and  her  husband  were  enti- 
tled to  or  held  any  land  as  their  homestead  at  the  time  of  his 
death." 

It  will  be  observed,  says  counsel,  that  the  court  distinctly 
holds  that  the  petition  for  a  homestead  must  show  a  right 
thereto  existing  at  the  time  of  the  husband's  death,  and 
counsel  claims  that  he  has  shown  that  residence  is  a  necessary 
and  material  fact;  then  the  result  must  follow  that  the  non- 
residence  of  the  parties  prior  to  the  husband's  death  deprived 
them  of  the  right;  and  such  nonresidence  continuing  up  to 
his  death,  must  be  held  to  deprive  the  widow  of  the  right. 

The  decedent  died  testate.  His  will  had  been  admitted  to 
probate,  and,  by  lapse  of  time  for  contest,  its  validity  is  no 
longer  sub.ject  to  question,  and  counsel  insists  that  by  the 
will  he  has  made  disposition  of  all  his  property,  and  that 
disposition  is  subject  only  to  the  rights  of  such  persons  as 
bring  themselves  clearly  within  the  statutory  provisions. 
The  fallacy  of  counsel's  argument  is  in  the  apparent  assump- 
tion that  there  is  no  distinction  between  a  statutory  home- 
stead and  a  probate  homestead,  all  the  cases  cited  by  him 
involving  the  question  of  statutory  homastead,  under  section 
1262  et  seq.,  of  the  Civil  Code ;  but  this  application  is  brought 
under  section  1465  of  the  Code  of  Civil  Procedure,  which 
provides  that,  upon  the  return  of  the  inventory,  or  any 
subsequent  time  during  the  administration  of  an  estate,  if 
no  homestead  has  been  selected,  designated  and  recorded,  the 
court  must,  on  its  own  motion,  or  on  petition  therefor,  select, 
designate,  set  apart  and  cause  to  be  recorded  a  homestead 
for  the  use  of  the  surviving  husband  or  wife  and  the  minor 
children;  or,  if  there  be  no  surviving  husband  or  wife,  then 
for  the   use   of   the   minor   children.     When   application    is 


Estate  of  Green.  453 

made  that  a  homestead  be  set  aside  under  this  section,  the 
court  has  no  discretion  in  the  matter,  but  must  grant  the 
application.     Nor  is  the  power  or  duty  of  the  court  in  this 
respect  limited  by  the  fact  that  the  decedent  left  a  will  by 
which  he  disposed  of  the  property  sought  to  be  set  aside. 
The  power  of  testamentary  disposition  of  property  is  con- 
ferred   and   defined   ]\v   statute,    is   not   paramount,    but   is 
subordinate  to  the  authority  conferred  upon  the  probate  court 
to  appropriate  the  property  for  the  support  of  the  famil}^ 
of  the  testator,  and  for  a  homestead  for  the  widow  and  minor 
child  or  children,  as  well  as  for  the  paj^ment  of  the  debts  of 
the  estate :  Estate  of  Ballentine,  45  Cal.  696 ;  Sulzberger  v. 
Sulzberger,  50  Cal.  385 ;  In  re  Davis,  69  Cal.  460,  10  Pac.  671. 
The  Matter  of  Davis,  last  cited,  went  to  the  supreme  court 
upon   appeal   from   this   probate   department,   in   which  the 
homestead  was  set  apart  for  the  minor  children  of  the  de- 
ceased, notwithstanding  the  will,  which  directed  that  all  the 
property  should  be  sold  and  a  portion  of  the  proceeds  given 
to  her  brother:  See  Estate  of  Bridget  Davis,  Deceased,  No. 
3,232,   Superior  Court,  Department  9.   Probate,   San   Fran- 
cisco.    Decree  entered  March  18,  1885,  Coffey  Judge.     The 
section  under  which  this  application  is  preferred  was  con- 
strued In  re  Bowman  69  Cal.  244,  10  Pac.  412.     This  case 
of  In  re  Bowman  would  seem  to  afford  a  complete  response 
to  the  claim  of  the  counsel  for  the  opponent  herein.     The 
court,  through  Mr.  Justice  Ross,  declared  that  this  statute 
does  not  attach  the  condition  that  the  decedent  must  have 
resided  upon  the  premises  before  a  given  piece  of  property 
can  be  set  apart  for  the  use  of  the  survivor,  or,  in  ease  of 
his  death,  to  the  minor  children  of  the  decedent;  but  in  ex- 
press terms  provides  that  if  no  homestead  has  been  selected, 
designated    and    recorded     (under    the    general    homestead 
laws),  or,  in  ease  the  homestead  so  designated  and  recorded 
was  selected  by  the  survivor  out  of  the  separate  property  of 
the  decftdent,  the  decedent   not  having  joined  therein,  the 
court  must  select,  designate  and  set  apart  and  cause  to  be 
recorded  a  homestead,  etc.     Such  a  homestead,  as  was  held 
in  the  matter  of  the  Estate  of  Busse,  35  Cal.  310,  may  be 
carved  out  of  any  property  left  by  the  decedent,  which  is 
capable  of  being  made  a  homestead.     In  the  Estate  of  Bo- 


454  Coffey's  Probate  Decisions,  Vol.  1. 

land,  43  Cal.  640,  the  court,  construing  the  sections  of  the 
old  probate  act,  which  are  now  incorporated  in  section  1465 
et  seq..  Code  of  Civil  Procedure,  through  Mr.  Justice  Niles, 
said :  ' '  That  a  probate  homestead  differs  from  a  case  of  a 
homestead  created  during  the  existence  of  the  community 
by  a  compliance  with  the  provisions  of  the  homestead  act, 
the  title  to  which  vests  in  the  wife  upon  the  death  of  the 
husband,  by  right  of  survivorship.  In  the  latter  case  the 
property  becomes  the  property  of  the  widow  by  operation 
of  law.  In  the  case  presented  it  could  only  become  hers  by 
the  decree  of  the  court  or  judge." 

The  right  of  the  applicant  to  have  a  homestead  set  apart 
to  her  from  the  estate  of  her  former  husband  must,  there- 
fore, be  determined  from  the  facts  as  they  existed  on  the 
day  when  the  order  of  the  probate  court  was  made.  In 
the  case  of  Higgins  v.  Higgins,  46  Cal.  265,  the  supreme 
court,  speaking  through  Mr.  Justice  Crockett,  held  that  a 
woman  could  claim  a  homestead  out  of  her  second  husband's 
estate,  although  one  had  been  set  apart  to  her  out  of  the 
estate  of  her  first  husband.  Said  the  court:  "It  is  said 
that  if  she  can  claim  both  she  will  be  protected  in  the  en- 
joyment of  two  homesteads  at  the  same  time — a  result  which, 
it  is  claimed,  was  not  comtemplated  by  the  statute.  But  it 
is  to  be  observed  that  a  homestead  to  be  set  apart  under  the 
probate  act,  for  the  use  of  the  widow  and  minor  children,  is 
a  mere  reservation  out  of  the  property  of  the  estate,  for 
their  benefit,  and  is  for  the  use  of  the  minor  children  as 
well  as  the  widow.  Under  the  general  homestead  act,  how- 
ever, the  homestead  goes  to  the  wife  alone,  if  she  survives 
her  husband;  and  her  children  by  a  former  marriage  would 
have  no  interest  in  it,  while  the  children  of  her  last  mar- 
riage would  have  no  interest  in  the  homestead  set  apart  from 
the  estate  of  the  first  husband.  Looking  to  the  policy  which 
dictated  the  two  classes  of  homesteads,  we  think  the  fact 
that  a  homestead  had  been  set  apart  from  the  estate  of  her 
former  husband,  for  the  use  of  Mrs.  Higgins  and  her  minor 
children,  did  not  stop  her  from  claihiing  a  homestead  out  of 
the  estate  of  her  second  husband." 

In  the  Estate  of  Moore,  57  Cal.  443-446,  the  supreme 
court,  through  Mr.  Justice  Myrick,  said :  ' '  The  right  to   a 


Estate  op  Green.  455 

probate  homestead,  so  called,  is  not  the  subject  of  sale. 
This  court  has  already  held  that  the  status  of  the  widow, 
at  the  time  of  the  application,  must  be  considered,  and  if 
she,  by  subsequent  marriage,  has  ceased  to  be  the  widow  of 
the  deceased,  she  cannot  have  a  probate  homestead  set  apart 
to  her.  If  a  testator  devised  his  entire  estate,  his  separate 
property,  his  widow  would  still  be  entitled  to  a  homestead; 
but  if  she  were  to  execute  a  deed  of  all  her  interest  in  the 
estate,  her  grantee  could  not  have  a  homestead  set  apart  to 
him.  If  she  should,  after  the  conveyance,  die  or  marry 
again,  there  would  be  no  right  of  homestead  to  survive  her 
or  her  widowhood.  Before  the  action  of  the  probate  court 
no  estate  has  vested  in  the  family,  so  far  as  homestead  is 
concerned.  It  is  merely  a  right  to  have  the  court,  as  a  part 
of  the  administration,  set  apart  property;  and  not  until 
such  action  can  it  be  said  that  any  estate  has  become  vested, 
either  at  law  or  in  equity.  The  right  to  have  a  homestead 
set  apart  is  no  estate,  either  in  law"  or  in  equity.  As  the 
court  said,  in  Bates  v.  Bates,  97  Mass.  395:  The  estate  of 
homestead  is  one  of  a  peculiar  nature.  It  is  a  provision,  by 
the  humanity  of  the  law,  for  a  residence  for  the  owner  and 
his  family." 

This  opinion  of  Mr.  Justice  Myrick  was  subsequently  con- 
firmed unanimously  by  the  court  in  bank,  he  being  again  the 
exponent  of  the  law,  and  he  draws  a  clear  distinction  be- 
tween a  statutory  and  a  probate  homestead,  refusing  to  ap- 
ply to  the  latter  a  section  which  he  considered  was  designed 
for  the  former  description  of  homestead,  saying:  "We  are 
therefore  of  opinion  that  the  section  does  not  apply  to  the 
case  before  us.  It  might  be  said  that,  even  if  the  legislature 
intended  that  a  right  to  apply  for  a  probate  homestead  was 
the  subject  of  bargain  and  sale,  it  was  not  intended  that 
any  less  interest  than  the  entire  right  should  be  acquired  by 
a  vendee;  for,  if  one  of  the  parties  entitled  to  apply — say 
the  mother  of  minor  children — could  sell  her  right,  and  her 
grantee  applied,  such  grantee  would  be  entitled  to  the  pos- 
session of  the  homestead  as  against  the  mother,  and  would 
have  a  joint  interest  with  the  children,  to  the  exclusion  of 
the  mother,  which  would  be  repugiumt  to  the  very  idea  of  a 
homestead.     It  being  the  office  of  the  legislature  to  provide 


456  Coffey  ^s  Peobate  Decisions,  Vol.  1. 

for  a  homestead,  i.  e.,  a  place  of  home  for  a  family,  we  can- 
not hold  that  a  statute  enacted  for  that  purpose  shall  have 
the  construction  and  effect  of  destroying  the  object  in  view." 
It  appearing  in  the  case  at  bar  that  the  applicant,  Julia 
Green,  was,  at  the  date  of  her  application,  the  surviving 
wife  and  widow  of  the  decedent,  William  Arthur  Green,  a 
resident  of  this  state  and  county,  and  that  there  is  property 
suitable  for  the  purpose  and  adapted  to  the  use  of  a  home- 
stead, she  has  fulfilled  all  the  conditions  which,  under  the 
law  which  she  invokes,  entitle  her  application  to  be  granted ; 
and  it  is  so  ordered.  Let  a  decree  be  drawn  and  presented 
to  the  court  according  to  the  conclusion  of  this  opinion. 


Estate  of  DAVID  McDOUGAL,  Deceased    (No.  2). 

[No.  2,278;  decided  February  27,  1884.] 

Appraisers— Choice  by  Court.— In  the  opinion  of  this  court,  it  would 
best  subserve  the  interests  of  estates  if  in  all  cases  the  court  actually 
chose  all  the  appraisers,  instead  of  having  the  representatives  of  the 
estate  or  their  counsel  choose  some  of  them. 

Family  Allowance— Necessity  of  Notice.— Under  section  1464,  Code 
of  Civil  Procedure,  no  notice  of  an  application  for  family  allowance 
is  necessary;  yet,  in  the  opinion  of  the  court,  it  would  be  a  salutary 
rule  to  require,  and  the  court  of  its  own  motion  requires  notice  to 
be  given  to  the  attorneys  for  absent  or  minor  heirs,  or  for  persons 
in  adverse  interest,  in  all  practicable  cases. 

Executor — Duty  to  Account  for  Assets. — It  is  the  duty  of  an  exec- 
utrix to  make  a  showing  to  the  court  of  the  disposition  of  the  dif- 
ference between  what  the  estate  is  prima  facie  entitled  to,  and  what 
it  is  claimed  was  the  whole  amount  received  by  her. 

Executor — Removal  for  Fraud. — The  evidence  reviewed,  and  the 
charge  of  fraud  against  the  executrix  held  not  proved.  The  obliga- 
tion of  proving  any  fact  lies  upon  the  party  who  substantially  as- 
serts the  affirmative  of  the  issue,  and  a  court  is  not  justified  in  plac- 
ing upon  a  person  charged  with  fraud  the  onus  of  showing  that  she 
is  guiltless;  on  the  contrary,  it  is  incumbent  upon  the  person  mak- 
ing a  charge   of  fraud   to   maintain  it  by  a  preponderance  of   proof. 

Executor. — The  Unfriendliness  of  an  Executrix  Toward  a  Mother, 
who  is  striving  to  obtain  what  she  can  by  legal  means  for  her  chil- 


Estate  op  McDougal.  457 

dren,  will  not  justify  the  court  in  adjudging  tlie  executrix  incompe- 
tent. 

Minor  Heirs. — The  Court  will  Endeavor  to  Conserve  the  Interests 
of  Minors,  and  will  at  all  times  aid  their  attorney  in  obtaining  for 
them  their  full  rights;  and  any  application  in  that  behalf  will  be 
welcomed  by  the  court,  which  regards  with  the  highest  favor,  the 
claims  of  minor  heirs. 

Evidence.— It  would  be  Contrary  to  all  Rules  of  Evidence  to  Ac- 
cept Testimony  that  lacks  clearness  and  certainty,  and  that  is  with- 
out corroboration,  as  against  adverse  evidence,  positive  and  par- 
ticular in  its  nature,  and  without  successful  assailment,  and  going  to 
the  main  fact  in  issue  itself. 

Fraud — Evidence. — Other  Things  Being  Equal,  where  oath  is  op- 
posed to  oath,  on  a  charge  of  fraud,  the  charge  must  fall. 

Witness. — A  Court  is  not  Warranted  in  Imputing  Want  of  Veracity 
to  a  witness,  unless  it  appears  that  willful  falsehood  has  been  told. 

A  Witness  False  in  One  Part  of  His  Testimony  is  to  be  Distrusted, 
but  the  court  should  be  satisfied  that  the  witness  has  testified  falsely, 
and  may  discriminate  between  distrust  and  utter  rejection  of  tes- 
timony. 

Evidence. — Entries  Made  in  an  Account-book  at  the  Request  of  One 
Person  by  another,  as  to  the  ownership  of  property,  are  of  no  more 
value  than  any  other  verbal  admissions  which  the  writer  orally  tes- 
tified to,  which  ought  to  be  received  with  great  caution.  An  entry 
in  favor  and  not  against  the  interest  of  a  party  dictating  it  is  dis- 
entitled to  consideration  on  that  account.  And  a  party  cannot  be 
affected  by  the  declaration  or  entry  of  a  party  in  his  own  favor, 
made  without  the  cognition  or  consent  of  the  former.  Evidence  of 
such  character,  even  when  admitted  without  objection,  cannot  be 
too  carefully  scrutinized,  for  it  is  in  all  cases  the  most  dangerous 
species  of  evidence  that  can  be  admitted  in  a  court  of  justice,  and 
the  most  liable  to  abuse. 

Application  for  removal  of  executrix. 

P.  J.  Van  Loben  Sels,  for  petitioner. 

A.  J.  Le  Breton,  for  executrix. 

COFFEY,  J.  In  the  trial  of  the  issues  raised  by  the 
petition  of  the  attorney  for  the  minor  heirs,  the  reading  of 
briefs  of  counsel  (seventy-three  pages  in  all),  the  re-exam- 
ination of  the  evidence,  and  the  consideration  of  the  au- 
thorities, an  amount  of  labor  has  been  imposed  upon  the 
judge  of  this  court,  in  addition  to  his  ordinary  tasks,  that 


458  Coffey's  Probate  Decisions,  Vol.  1. 

it  is  to  be  feared,  counsel  little  appreciate  in  the  intensity 
of  their  zeal  for  their  respective  interests.  The  petitioner 
requests  of  the  court  a  written  opinion  and  "full  findings," 
to  which  first  request  the  court  endeavors  here  to  make  re- 
sponse. Counsel  also  made  an  oral  request  that  a  "finding" 
be  made  as  to  his  personal  and  professional  conduct  of  the 
cause  committed  to  his  custody  by  the  court.  Without  con- 
ceding the  necessity  of  such  a  "finding"  or  opinion,  the 
court  cheerfully  awards  him  credit  for  earnestness,  energy 
and  exemplary  fidelity  in  prosecuting  this  petition,  which  he 
undoubtedly  prepared  in  good  faith  and  upon  premises  that 
apparently  justified  him  in  his  attempt  to  add  to  the  assets 
of  the  estate,  or  to  prevent  their  appropriation  or  spoliation 
by  the  executrix  in  her  own  interest  or  to  the  prejudice  of 
the  minor  heirs. 

The  petitioner,  in  behalf  of  the  minor  heirs,  the  children 
of  Charles  J.  McDougal,  deceased,  demands  the  removal  of 
the  executrix  on  the  grounds,  generally,  of  (1)  fraud,  (2) 
incompetency,  and  (3)  waste  and  mismanagement  of  the 
estate. 

In  support  of  the  charge  of  fraud,  the  petitioner  alleges 
that  the  executrix  procured,  with  intent  to  reduce  the  valua- 
tion of  the  assets  of  the  estate,  the  appointment  of  incompe- 
tent appraisers,  who,  acting  under  the  direction  and  in- 
fluence of  executrix  undervalued  the  assets  of  the  estate. 
Two  of  these  appraisers  were  nominated  by  the  executrix,  or 
by  her  counsel,  and  the  third,  appointed  of  the  court's  own 
desire,  was  not  called  upon  to  act  by  the  executrix.  It 
turned  out  on  the  trial  of  this  matter  that  the  two  nominees 
of  the  executrix  acted  in  good  faith ;  and  the  reason  the  third 
did  not  act  that  he  was  not  found  in  the  city,  and  was  sup- 
posed to  be  temporarily  absent  therefrom.  This  charge  was 
not  pressed  by  petitioner;  but  it  suggests  to  the  court  the 
comment  that  it  might  be  better  if  in  all  cases  the  court 
actually  chose  all  the  appraisers. 

The  petitioner  further  charges,  among  the  fraudulent  acts 
of  the  executrix,  that  she  omitted  from  the  inventor}^  men- 
tion of  large  sums  of  money  belonging  to  the  estate,  par- 
ticularly specifying  a  portion  of  the  "Japanese  Indemnity 
Fund,"  amounting  to  $6,300.     The  whole  amount  was  $21,- 


Estate  of  McDougal.  459 

000,  and  it  is  claimed,  on  behalf  of  the  executrix,  that  the 
portion  omitted  was  appropriated  in  pursuance  of  a  contract 
for  the  payment  of  agents  who  were  employed  to  obtain  the 
amount  from  the  government. 

It  is  also  charged  that  the  executrix  obtained,  through  im- 
position upon  the  judge  at  the  time  temporarily  acting  in 
this  department,  and  without  notice  to  the  attorney  for  the 
minor  heirs,  an  excessive  "family  allowance." 

The  petitioner's  gravest  charge  is:  "That  since  the  death 
of  David  McDougal,  but  before  any  letters  testamentary^ 
were  issued  to  her,  to  wit,  on  the  twelfth  day  of  September, 
A.  D.  1882,  said  executrix,  with  intent  to  cheat  and  defraud 
said  minor  children,  executed  and  delivered  a  conveyance  to 
one  of  her  daughters,  to  wit,  Mrs.  Di  W.  Van  Voorhies,  of  a 
large  and  valuable  tract  of  land,  belonging  to  the  community 
property  of  the  said  David  McDougal,  deceased,  and  that  no 
mention  of  this  transaction  is  made  in  said  inventory,  and 
that  said  property  does  not  appear  in  said  inventory  among 
the  assets  of  said  estate." 

1.  The  first  specification,  alleging  fraudulent  conduct  in 
the  appointment  and  acts  of  appraisement,  is  not  proved. 

2.  In  reference  to  the  "Japanese  Indemnity  Fund,"  the 
court  is  of  opinion  that,  while  no  fraudulent  conduct  is 
established,  the  executrix  should  make  a  showing  of  the 
disposition  of  the  difference  between  what  the  estate  is 
prima  facie  entitled  to,  and  what  it  is  claimed  was  the 
whole  amount  received.  This  should  have  been  done  with- 
out compelling  the  petitioner  to  have  recourse  to  this  mode 
of  procedure  to  ascertain  the  facts.  In  this  respect  the 
executrix  is  guilty  of  error  of  judgment,  but  under  the  evi- 
dence I  cannot  find  fraud  in  her  conduct.  As  to  the  char- 
acter or  classification  of  this  property,  I  do  not  deem  it  neces- 
sary' in  this  proceeding  to  venture  an  opinion.  This  is  an 
inquiry  as  to  the  fraud  alleged  to  have  been  practiced  by 
the  executrix,  and  I  find  no  fraud. 

3.  As  to  the  allowance  made  by  order  of  July  8,  1883, 
which  the  petitioner  alleges  was  obtained  by  false  and 
fraudulent  representations  and  imposition  practiced  upon 
the  judge  temporarily  presiding  here,  and  contrary  to  the 
custom,   rules  and   practice  of  this  dopnrtmout,   it  seems   to 


460  Coffey's  Probate  Decisions,  Vol.  1. 

have  been  procured  in  conformity  with  the  section  of  the 
statute,  which  does  not  necessitate  notice  such  as  is  suggested 
by  the  petitioner:  Code  Civ.  Proc,  sec.  1464.  Yet,  in  the 
opinion  of  this  judge,  it  would  be  a  salutary  rule  to  adopt 
in  such  cases  as  the  one  under  consideration,  and  the  pres- 
ent judge  of  his  own  motion  requires  the  attorney  for  ab- 
sent or  minor  heirs,  or  other  attorney  for  persons  in  adverse 
interest,  to  be  notified  in  all  practicable  cases.  But  the  law 
does  not  literally  require  it ;  and,  however  censurable  the 
conduct  of  counsel  may  be,  fraud  is  not  lightly  to  be  im- 
puted to  a  client  for  his  counsel's  conduct.  Under  the  cir- 
cumstances of  this  case,  the  court  can  only  suggest  that  the  al- 
lowance would  seem  to  be  in  excess  of  the  needs  of  the 
widow,  considered  with  reference  to  the  other  interests.  The 
order  was  legally  applied  for  and  obtained  in  the  customary 
mode. 

4.  As  to  the  charge  that  the  petition  for  the  setting  apart 
of  a  homestead  was  for  the  purpose  of  fraudulently  monopo- 
lizing assets  of  the  estate,  as  the  issue  involved  herein  is 
under  consideration  in  another  application,  it  would  be  more 
appropriate  to  withhold  an  opinion  in  this  proceeding,  ex- 
cept to  formally  indicate  that  there  is  no  fraud  proved  as  to 
that  particular  matter. 

5.  The  charge  of  fraudulently  conveying  a  certain  tract 
of  land  in  Oakland  to  her  daughter,  Mrs.  Van  Voorhies,  is 
the  last  item  of  the  specifications,  according  to  the  order  in 
which  the  court  has  chosen  to  consider  them.  The  answer 
to  this  accusation  was,  that  the  property  involved  in  this 
issue  was  purchased  by  the  money  of  Mrs.  Van  Voorhies,  and 
placed  in  her  mother's  name  on  account  of  certain  appre- 
hensions of  the  purchaser  proceeding  from  her  unhappy 
domestic  circumstances.  It  was  testified  by  Mrs.  Van  Voor- 
hies that  the  money  wherewith  she  made  this  purchase  was 
the  result  of  her  savings  of  sums  donated  to  her  from  time 
to  time  by  her  deceased  father,  David  McDougal.  Assaults 
and  counter-assaults  upon  the  credibility  of  the  witnesses 
have  been  made  by  counsel  with  reference  to  the  evidence 
adduced  concerning  this  matter,  but  it  is  just  possible  to 
decide  this  issue  either  way  without  imputing  perjury  to  any 
witness.     If  there  be  suf^cient  support  for  the  story  of  Mrs 


Estate  of  McDougal.  461 

Van  Voorhies  that  the  property  back  of  Tubbs'  Hotel,  in 
Oakland,  was  purchased  with  the  $200  derived  by  her  as 
she  has  stated,  the  executrix  will  be  relieved  of  the  charge 
of  fraud;  but  it  may  be  questioned  whether  the  court  is 
justified  in  placing  upon  her  the  onus  of  showing  that  she 
is  guiltless.  Without  reference  to  this  question  of  burden, 
I  shall  attempt  an  examination  of  the  probability  of  her 
story  of  the  purchase. 

Mrs.  Van  Voorhies  testifies  that  she  purchased  the  prop- 
erty "back  of  Tubbs'  Hotel"  in  1862,  with  her  own  money, 
$200,  savings  accumulated  from  donations  of  small  sums  at 
different  times  from  her  father;  that  the  title  was  put  in 
her  mother's  name  because  of  the  uncertainty  and  unhappi- 
ness  of  her  domestic  relations,  and  to  protect  her  child;  she 
considered  it  prudent,  because  of  her  domestic  relations,  to 
put  this  piece  of  property  in  her  mother's  name,  "for  that 
reason  only."  Here  is  a  fact  testified  to  and  a  motive  as- 
signed for  it — the  purchase  and  payment  with  her  own 
means  and  the  placing  of  title  in  her  mother's  name  and 
the  reason  for  such  conduct.  Counsel  cross-examining  the 
witness  upon  this  point,  she  reaffirmed  the  statement  as  to 
the  uncertainty  and  unhappiness  of  her  domestic  relations 
and  her  apprehensions  for  the  protection  of  herself  and 
child,  as  the  motive  for  the  conduct. 

As  to  the  fact  of  purchase  and  the  manner  of  her  acqui- 
sition of  the  means  of  purchase,  Mrs.  Van  Voorhies'  testi- 
mony is  corroborated  by  Mrs.  Le  Breton,  her  sister,  who 
testified  that  her  father,  David  McDougal,  told  her  it  be- 
longed to  his  daughter  "Di,"  Mrs.  Van  Voorhies,  who  had 
bought  it  with  her  own  savings,  and  that  it  was  put  in  the 
mother's  name  for  prudential  motives;  upon  cross-examina- 
tion she  said:  "My  father  always  spoke  of  the  property 
back  of  Tubbs'  Hotel." 

Mr.  Le  Breton,  in  his  testimony,  relates  a  conversation 
had  with  David  McDougal,  in  which  he  said  this  property 
was  purchased  by  his  daughter  "Di"  with  her  own  savings. 

Mrs.  Caroline  M.  JMcDougal  testifies  that  the  property 
"back  of  Tubbs'  Hotel"  was  purchased  by  her  daughter, 
"Di"  W.  Van  Voorhies,  with  her  own  savings;  that  neither 
she   (the  witness)    nor  her  husband   (David  ]\IcDougal)   put 


462  Coffey's  Probate  Decisions,  Vol.  1. 

any  money  at  all  into  that  property;  that  the  failure  to  re- 
convey  it  until  after  his  death  was  a  mere  oversight;  that 
"he  often  said  that  he  would  make  a  deed  of  it,  but  put  it 
off  without  doing  so."  This  statement  was  not  varied  on 
cross-examination. 

The  testimony  of  Robert  Foster  Patten  is  not  very  defi- 
nite; but,  so  far  as  it  has  any  tendency,  it  is  in  support  of 
the  claim  that  Mrs.  Van  Voorhies  was  the  owner  of  the 
property  involved  in  this  inquiry;  and,  so  far  as  Wm.  Pat- 
ten's testimony  is  concerned,  it  is  too  indefinite  to  be  taken 
into  account. 

Mrs.  Van  Voorhies  testified  further,  with  regard  to  the 
purchase  (p.  31,  vol.  3,  Reporter's  Notes),  that  she  paid  the 
purchase  price,  $200,  with  her  own  hands,  to  one  Hezikiah 
P.  Jones,  from  whom  she  bought  the  property,  he  acting  for 
his  sister  who  owned  it. 

Mr.  Jones  was  called  by  petitioner,  and  the  tendency  of 
his  testimony  is  to  support  the  statement  of  Mrs.  Van  Voor- 
hies.    (Vol.  4,  Reporter's  Notes.) 

Counsel  for  the  petitioner,  claiming  that  the  testimony  of 
Mrs.  Caroline  McDougal,  Mrs.  Van  Voorhies,  Mrs.  Le  Bre- 
ton and  ]\Ir.  Le  Breton  is  a  concocted  story,  for  the  purpose 
of  carrying  out  the  alleged  conspiracy  to  appropriate  the 
assets  of  the  estate,  and  is  overthrown  by  the  evidence  sub- 
mitted on  the  part  of  the  petitioner,  and  by  the  cross-exam- 
inations conducted  by  himself,  serving  to  show  how  untrust- 
worthy the  story  of  the  purchase  told  by  Mrs.  Van  Voorhies. 
asks  the  court  to  reject  it. 

Mrs.  Kate  Coffee  McDougal  testifies  that  Mrs.  Caroline 
McDougal  stated  to  her  that  she  had  bought  that  property  for 
a  very  small  sum;  that  she  had  bought  it  herself;  that  she 
made  such  a  statement  at  various  times,  but  she  cannot  lo- 
cate time  or  place  of  conversation,  and  is  quite  indistinct 
in  her  recollection  upon  this  point,  and  her  testimony  in 
this  respect  is  contradicted  by  the  other  party,  who  says  she 
does  not  remember  ever  having  had  any  such  interview,  and 
does  not  think  there  ever  was  any,  and  she  did  not  talk  busi- 
ness before  her  (vol.  3,  Reporter's  Notes). 

Mrs.  Kate  C.  McDougal,  being  cross-examined,  says  she 
did  not  hear  David  McDougal  speak  of  it  very  much,  indeed 


Estate  op  McDougal.  463 

very  seldom,  but  she  heard  Mrs.  McDougal  speak  of  it  very 
often,  for  she  (Mrs.  Caroline  McDougal)  was  very  confi- 
dential with  witness'  husband  about  her  affairs  and  spoke  to 
him  very  often,  and  she  said  in  her  presence  that  she  (Mrs 
Caroline  McDougal)  wanted  to  keep  that  property  back  of 
Tubbs'  Hotel  for  herself;  she  wanted  to  keep  that;  she  con- 
sidered that  a  valuable  piece  of  property;  originally  it  was 
bought  for  a  small  sum,  and  it  had  increased  beyond  their 
expectations,  and  the  other  members  of  the  family  spoke  of 
it  as  Mrs.  McDougal 's  property;  nothing  was  said  about 
David  McDougal's  interest  in  it;  he  did  not  speak  of  it  very 
much;  she  thinks  he  was  present  at  some  of  these  conver- 
sations; he  did  not  claim  it;  he  spoke  of  it  as  his  wife's 
property.  Witness  could  not  recollect  any  time  or  place  at 
which  those  conversations  occurred.  This  testimony  is  met 
by  Mrs.  Caroline  McDougal  as  already  alluded  to  (vol.  3,  p. 
21,  Reporter's  Notes).  Witness  also  testified  to  her  inti- 
macy with  Mrs.  Van  Voorhies,  which  intimacy  did  not  in- 
volve any  discussion  of  family  relations  until  1866,  in  which 
year  witness  intermarried  with  Charles  J.  McDougal,  the  son 
of  the  executrix  and  brother  of  Mrs.  Van  Voorhies.  Witness 
testifies  that  at  that  time  the  domestic  relations  of  Mrs.  Van 
Voorhies  were  pleasant  and  harmonious  so  far  as  she  knew; 
that  she  had  a  conversation  with  Mrs.  Van  Voorhies  in  1877 
or  1878,  at  which  the  latter  referred  to  some  money  tliat 
Mr.  Van  Voorhies  sent  to  her  from  Aurora  in  1863,  with 
which  she  purchased  the  property  in  Oakland,  "in  front 
of  Tubbs'  Hotel";  this  was  after  Mrs.  Van  Voorhies'  return 
from  Europe,  whither  she  had  gone  in  1869,  and  witness 
further  testified  that  ]\Irs.  Van  Voorhies,  after  her  return 
from  Europe,  spoke  about  her  unhappy  relations  with  her 
husband  (vol.  2,  Reporter's  Notes)  ;  that  such  conversations 
occurred  in  September,  1875,  and  in  speaking  of  such  re- 
lations Mrs.  Van  Voorhies  was  relating  back  to  a  period  of 
eight  or  ten  years;  the  impression  witness  derived  from  her 
conversations  with  Mrs.  Van  Voorhies  was  that  the  relations 
of  the  latter  were  and  had  been  "not  very  happy." 

Mr.  Van  Voorhies  was  called,  and  testified  that  in  1862  and 
1863  his  relations  with  his  wife  were  agreeable,  and  that  he, 
before  and  after  that  year,  and  he  concluded  in  that  year, 


464  Coffey's  Probate  Decisions,  Vol.  1. 

contributed  to  the  support  of  herself  and  child ;  he  sent  her 
money  from  Aurora,  to  which  place  he  went  about  1863 ; 
and  it  was  admitted  that  the  amount  he  sent  was  as  much 
in  all  as  $3,000.  Witness,  under  cross-examination,  testified 
that  he  supported  his  family  always  according  to  his  ability, 
and  that,  while  he  was  practicing  law  and  occupying  public 
office,  he  provided  for  them.  He  said  that  his  marital  rela- 
tions, with  the  exception  of  some  intervals  which  were,  per- 
haps, chargeable  to  him,  were  agreeable  up  to  1868  or  1869, 
when  they  went  to  Europe,  where  they  spent  seven  or  eight 
years;  while  there  he  sent  them  various  sums  of  money;  he 
lived  at  the  Cosmopolitan  Hotel,  in  San  Francisco,  for  awhile 
after  marriage,  but  had  no  idea  at  this  time  whether  his 
wife's  bills  there  were  paid  by  her  father  or  otherwise. 

Mrs.  Van  Voorhies,  being  recalled  for  cross-examination 
by  petitioner,  said  that  from  1857  to  1862  her  husband  con- 
tributed little  or  nothing  to  her  support,  that  their  bills 
were  paid  by  her  father  and  mother ;  that  in  1862  her  mother 
raised  the  money  to  enable  witness'  husband  to  go  to  Aurora; 
that  after  he  went  to  Aurora  he  sent  her  money  on  two  occa- 
sions, but  these  she  did  not  call  "regular  remittances"; 
after  he  returned  from  Aurora,  a  few  months  subsequently, 
he  led  the  same  dissolute  life;  he  gave  witness  nothing,  and 
her  father  and  mother  supported  her  all  the  time,  and  edu- 
cated her  daughter;  in  1869  she  went  to  Europe  to  remove 
her  daughter  from  such  influences,  and  at  intervals  he  would 
send  her  one  or  two  pounds  at  times;  she  denied  that  cordial 
relations  existed  between  them  while  she  was  in  Europe,  or 
that  she  wrote  him  very  cordial  letters;  and  she  did  not 
remember  that  at  stated  intervals  he  sent  ranging  from  five 
to  seven  and  twenty  and  fifty  pounds  to  her,  and  that  she 
acknowledged  the  receipt  of  same  in  letters ;  and,  in  explana- 
tion of  letter  introduced,  she  tried  to  write  letters  as  kind 
and  encouraging  as  she  could. 

Several  such  letters  were  introduced  by  petitioner  and 
they  seem  to  be  of  an  affectionate  nature,  acknowledging 
receipts  of  considerable  sums,  suggesting  straits  on  account 
of  her  daughter's  education,  and  encouraging  her  husband 
in  certain  aspirations,  admonishing  him  as  to  her  apprehen- 


Estate  of  McDougal.  465 

sion  of  a  return  of  his  habits,  and  giving  certain  advice  as 
to  material  considerations,  laying  stress  upon  his  regarding 
money  rather  than  fame,  and  the  necessity  of  providing  for 
their  declining  years.  She  was  in  Europe  nearly  seven  years, 
and  from  the  time  of  her  departure  hence  until  in  the  court- 
room in  the  progress  of  this  controversy,  she  had  never  seen  or 
spoken  to  ^Ir.  Van  Voorhies;  from  1869  they  never  resumed 
marital  relations;  while  in  Europe,  and  long  before,  her 
father  and  mother  mainly  supported  her;  her  husband's  con- 
tributions "amounted  to  nothing"  (the  witness'  language)  ; 
in  San  Francisco,  while  staying  with  her  husband  at  the 
Cosmopolitan  Hotel,  her  mother  paid  her  board  and  all  her 
bills;  this  was  in  1868;  at  the  Eureka  Hotel,  in  Oakland,  he 
would  procure  her  bill,  and  have  it  made  out  to  her  mother, 
and  his  own  bill  separately,  and  her  mother  would  pay  the 
witness'  bill  and  the  husband  would  pay  his  own;  between 
the  years  1862  and  1868  he  was  very  intemperate,  "scarcely 
drew- a  sober  breath  during  that  time";  that  was  his  mode 
of  life,  witness  said  she  might  say,  as  far  back  as  1854;  his 
sober  intervals  were  rare ;  she  tried  to  conceal  this,  and  shield 
him  all  she  possibly  could,  and  she  reared  her  daughter  to 
respect  him.  This  is  a  summary  of  her  story  of  domestic 
infelicities. 

Mr.  Van  Voorhies,  on  recall,  denied  that  from  1857  to 
1862  his  mother  paid  all  his  expenses  or  those  of  his  wife; 
but  thought  his  mother  in  law  advanced  money  to  aid  him  to 
go  to  Aurora,  and  the  money  for  her  and  child  to  go  to 
Europe;  he  did  not  remember  that  he  accompanied  them  to 
Sacramento,  nor  that  he  took  $100  from  her  of  that  money, 
but  would  not  deny  it  if  his  former  wife  said  so :  he  would  be- 
lieve her;  his  condition  was  such  while  his  wife  was  in 
Europe  that  he  could  not  support  his  wife  and  child,  no 
matter  how  cheaply  they  were  living;  but  while  they  were 
in  Europe  property  they  had  bought  with  money  he  liad 
supplied  them  was  mortgaged  to  raise  money  to  pay  their 
expenses  in  Europe;  he  reiterated  that  his  relations  with  her 
at  all  times  had  been  agreeable;  they  continued  to  he  so; 
the  correspondence  between  them  continued  until  a  month  or 
two   prior  to  her  return   from  Europe,  she  returned  from 

Prob.  Dec,  Vol.  I — 30 


466  Coffey's  Probate  Decisions,  Vol.  1. 

Europe  incognito,  and  witness  did  not  know  when  she  came 
until  he  was  advised  by  Col.  Coffee  that  she  was  in  San 
Francisco.  Their  relations,  notwithstanding  their  tender 
correspondence,  seem  to  have  terminated  here  in  fact,  and 
in  law  they  were  shortly  afterward  separated  in  1877. 

A  Mr.  Wood  was  introduced  to  prove  remittances  from 
Aurora  by  Mr.  Van  Voorhies,  and  the  fact  that  ]\Irs,  Van 
Voorhies  had  large  amounts  of  valuable  mining  stocks  stand- 
ing in  her  name,  which  he  believed  was  hers;  but  this  testi- 
mony was  contradicted  by  Mrs.  Caroline  McDougal  and  Mrs. 
Van  Voorhies,  who  swore  that  the  property  belonged  to  Mrs. 
Caroline  McDougal. 

Mrs.  Kate  Coffee  McDougal  was  recalled,  and  testified  that 
her  husband,  Charles  J.  McDougal,  kept  accounts  and  man- 
aged the  property  "back  of  Tubbs'  Hotel";  and  witness 
identified  a  book  produced  by  petitioner  as  an  account-book, 
and  that  certain  entries  were  made  by  him  in  her  presence 
and  at  the  instance  of  Mrs.  Caroline  McDougal  before  she 
went  to  Europe ;  this  book,  it  is  claimed,  contained  an  account 
of  all  the  property  that  Mrs.  McDougal  possessed  at  that 
time,  and  that  Mrs.  Van  Voorhies  possessed;  also  the  direc- 
tions that  Mrs.  McDougal  gave  him  at  the  time  as  to  the 
management  of  the  property  and  what  she  wanted  done  with 
it,  and  a  full  and  complete  account  of  everything,  of  what 
the  lots  sold  for,  and  all  appertaining  to  the  business  (vol. 
3,  Keporter's  Notes,  pencil  page  6).  Witness  said  the  instruc- 
tions and  directions  were  set  down  in  her  presence. 

Mrs.  Caroline  McDougal,  being  called,  said  she  never  saw 
this  account-book  before;  the  items  therein  were  never  made 
in  her  presence,  and  -the  account  was  never  made  in  her 
presence ;  when  witness  went  to  Europe  she  left  everything  in 
her  son's  hands,  and  she  didn't  positively  know  if  she  said 
anything  about  the  particular  property  "back  of  Tubbs' 
Hotel,"  she  considered  it  of  so  little  importance,  and  her 
daughter  always  told  her  if  she  wanted  money  to  sell  the  lot 
and  not  be  cramped  for  money;  it  yielded  only  road  assess- 
ments, which  witness  had  to  pay  as  her  daughter  had  no 
money.  Witness  repeated  the  mode  of  acquisition  by  her 
daughter  of   the  money  wherewith   the  property  was   pur- 


Estate  of  McDougal.  467 

chased ;  David  IMcDougal,  witness '  husband,  gave  his  daughter 
$100  at  one  time  to  buy  a  winter  cloak,  and  she  put  it  by, 
and  he  frequently  gave  her  small  sums,  ten  or  twenty  dollars, 
which  she  saved,  and  with  the  savings  bought  this  property 
in  1862. 

j\Ir.  W.  K.  Van  Alen  testified  that  he  knew  the  history  of 
the  property  in  question,  and  that  they  all  said  that  piece 
of  property  belonged  to  Mrs.  Van  Voorhies.  Mr.  Van  Alen 
was  the  agent  of  the  family. 

The  petitioner  claims  that  the  whole  story  of  the  purchase 
for  $200,  in  1862,  by  Mrs.  Van  Voorhies,  is  falsified  by  the 
testimony  of  Mrs.  Kate  Coffee  McDougal,  corroborated  by 
the  account-book  kept  by  Charles  J.  McDougal ;  by  the  letters 
from  Mrs.  Van  Voorhies,  while  in  Europe,  to  her  husband; 
by  the  testimony  of  Mr.  Van  Voorhies;  by  the  remittances 
from  him  to  her. 

Mrs.  Kate  Coffee  McDougal's  testimony,  standing  by 
itself,  lacks  clearness  and  certainty  in  its  details,  and  it 
would  be  contrary  to  all  rules  of  evidence  to  accept  it,  with- 
out corroboration,  as  against  adverse  evidence,  positive  and 
particular  in  its  nature  and  without  successful  assailment, 
and  going  to  the  fact  itself  of  the  purchase  of  the  property 
with  the  means  and  in  the  manner  testified  by  the  opposing 
witnesses.  It  is  claimed  by  petitioner  that  the  testimony  of 
Mrs.  Kate  Coffee  McDougal  is  corroborated  by  the  account- 
book  of  Charles  J.  McDougal,  and  by  the  statements  or 
memoranda  contained  therein,  written  in  purple  ink  on  four 
separate  pages,  the  whole  of  which  I  here  transcribe : 

''Mrs.  Caroline  McDougal  possesses  the  following  property, 
viz. : 

"Three  houses  and  lots,  corner  of  Waverly  Place  and 
Sacramento  street,  unincumbered. 

"Block  E  in  the  Whitcher  Tract,  in  the  Township  of  Oak- 
land, Alameda  County,  on  which  is  a  mortgage  held  by  the 
Savings  &  Loan  Society  of  San  Francisco  for  $4,000.  Inter- 
est at  the  rate  of  li/4  per  cent,  per  month,  payable  monthly. 
The  note  for  the  above  sum  falls  due  on  the  28th  November, 
1870.     W.  K.  Van  Alen  attends  to  this,  pays  interest,  etc. 


468  Coffey's  Probate  Decisions,  Vol.  1. 

"Southern  half  of  Block  142,  County  of  Alameda,  Town 
of  Clinton,  unincumbered.  A  man  named  Russel  has  had 
the  use  of  this  land  on  payment  of  the  taxes. 

"Two  lots  in  the  Excelsior  Homestead  Association  in  San 
Francisco,  unincumbered,"  on  one  page. 

On  the  next  page : 

"Thirty  shares  stock  Vallejo  Savings  and  Commercial 
Bank.  Fifteen  per  cent,  of  the  par  value  has  been  paid  on 
this  stock,  amounting  to  $450. 

"Block  20,  Town  of  Brooklyn,  Alameda  County.  This 
block  is  in  the  name  of  Mrs.  Caroline  McDougal,  but  belongs 
to  Mrs.  D.  W.  Van  Voorhies.  This  block  is  mortgaged  for 
$3,000  to  Lovell  Hardy,  Esq.,  interest  at  the  rate  of  V/^  per 
cent.,  payable  quarterly.  On  the  14th  November,  1870,  the 
next  pa.^Tnent  of  interest,  $112.50,  is  due. 

"One  lot  in  the  Excelsior  Homestead,  standing  in  the  name 
of  Mrs.  D.  W.  Van  Voorhies;  and  two  lots  numbered  1,025 
and  1,030  on  Gift  Map  No.  3,  in  the  name  of  Mary  Caroline 
Van  Voorhies;  and  four  lots  numbered  1,069,  1,071,  1,073 
and  1,075  on  Gift  Map  No.  8,  in  the  name  of  Margaret  Stock- 
ton McDougal.     Mrs.  McDougal  has  the  care." 

On  another  page : 

"Pays  taxes  on,  etc.  These  lots  are  known  as  Harvey 
Brown's  $10  lots." 

On  another  page : 

' '  GENERAL    INSTRUCTIONS. 

"If  possible,  the  Whitcher  Tract,  or  any  part  of  it,  is  to 
be  sold  to  pay  off  the  $4,000  mortgage.  $12,000  is  the  price 
of  the  entire  tract,  a  smaller  quantity  at  a  proportionate  price. 
The  result  of  any  sale  of  this  property  to  go  toward  satisfy- 
ing the  mortgage. 

"Block  20,  in  Clinton,  is  to  be  sold  if  possible,  and  the 
proceeds  used  to  satisfy  the  mortgage  on  it  for  $3,000,  held 
by  L.  J.  Hardy,  Esq.     $10,000  is  the  price  of  the  block." 

And  on  a  fifth  other  page  is  the  following: 
"Mrs.  D.  W.  Van  Voorhies  owns  three  houses  and  lots  on 
Silver  street,  numbered  25,  27  and  29,  on  which  there  is  a 


Estate  op  McDougal.  469 

mortgage  for  $6,000,  held  by  the  Savings  and  Loan  Society 
on  Clay  street,  Mr.  Burr,  President;  interest  at  the  rate  one 
per  cent,  per  month.  The  interest  is  paid  by  W.  K.  Van 
Alen,  who  attends  to  the  property  and  collects  the  rent  of 
houses  Nos.  25  and  29.  House  rent  of  No.  27  is  paid  to  C. 
J.  McDougal. 

"At  present  the  following  rents  are  received  from  this 
property : 

"House  25  $35  00 

House  27  27  50 

House  29   50  00." 

The  foregoing  is,  as  nearly  as  practicable,  a  literal  tran- 
scription of  that  portion  of  Charles  J.  McDougal 's  account- 
book,  said  to  have  been  taken  down  by  him  at  the  instance 
of  and  in  the  presence  of  Mrs.  Caroline  McDougal,  and  in 
presence  of  Mrs.  Kate  C.  McDougal;  and  for  the  purpose  of 
illustrating  the  comments  of  the  court,  I  will  insert,  from  the 
testimony  of  the  last  named  lady,  an  extract  from  the  Re- 
porter's Notes,  after  the  introduction  and  reading  of  the  fore- 
going : 

"Q.   (By  Petitioner.)     This  is  entered  by  your  husband? 

"A.  That  is  my  husband's  handwriting;  his  own  account. 

"By  the  Court.  Did  you  say  that  all  these  entries  Avere 
made  in  your  presence? 

'A.  That  was  the  instructions  and  directions. 
'By  Mr.  Van  Loben  Sels.     Were  you  present  when  these 
instructions  were  given  and  taken  down? 

"A.  Yes,  sir;  I  was  present  when  they  were  taken  down. 

"The  Court.     There  are  no  dates  to  them. 

"Witness.     There  are  dates. 

"The  Court.     Not  in  the  articles  you  have  read. 

"A.  Not  in  the  articles  I  have  read. 

"Mr.  Van  Loben  Sels.  The  book  is  allowed  to  go  in  by 
the  gentleman  on  the  other  side. 

"Mr.  Le  Breton.  I  do  not  see  any  date  to  it,  and  so  it 
goes  in  only  for  what  it  is  worth. 

"Q.  Now,  Mrs.  McDougal,  can  you  state  about  the  time 
when  those  instructions  were  given  and  taken  down? 


470  Coffey's  Probate  Decisions,  Vol.  1. 

"A.  At  the  time  of  Mrs.  McDougal's  departure  for  Europo. 

"Q.  What  time  about  was  that? 

"A.  I  think  it  was  in  1870,  in  the  fall. 

"Q.  About  that  time? 

"A.  In  the  fall  of  1870." 

Now,  the  account-book  coming  in  without  objection,  "for 
what  it  is  worth,"  the  question  is,  "What  is  it  worth  in  cor- 
roboration of  Mrs.  Kate  Coffee  McDougal,  and  in  proof  of 
the  claim  here  made  as  to  the  actual  property?  If  the  in- 
troduction of  this  account-book  had  been  objected  to,  it  is 
difficult  to  understand  upon  what  principle  or  rule  of  evi- 
dence its  admission  could  be  sustained.  I  have  examined 
carefully  the  code  and  treatises,  with  a  view  of  ascertaining 
accurately  how  this  book  should  be  treated,  without  arriv- 
ing at  any  conclusion  favorable  to  its  admission;  but  it  is  in, 
and  is  to  be  considered  for  "what  it  is  worth." 

In  the  argument  of  counsel  for  petitioner,  great  stress  was 
laid  upon  this  memorandum  or  account-book,  as  corrobora- 
tive of  Mrs.  Kate  Coffee  McDougal,  and  contradictory  of  the 
adverse  witnesses.  The  book  contains  certain  memoranda 
claimed  to  have  been  set  down  by  dictation  of  Mrs.  Caro- 
line McDougal.  Are  its  contents  as  to  these  memoranda  to 
be  treated  as  her  declaration  as  to  the  property  "back  of 
Tubbs'  Hotel"?  That  is  the  only  pretext  for  its  considera- 
tion. What  does  it  establish?  There  is  no  date  to  that  por- 
tion which  Mrs.  Kate  Coffee  McDougal  testified  was  taken 
down  at  the  dictation  of  Mrs.  Caroline  McDougal.  There 
is  a  considerable  blank  before  the  first  page  in  purple  ink, 
and  a  page  or  two  after  the  fifth  page  in  purple  ink,  before 
the  next  entry,  which  is  in  another  colored  ink.  As  the 
court  remarked,  in  that  portion  of  the  testimony  of  Mrs.  Kate 
Coffee  McDougal  hereinbefore  quoted,  there  are  no  dates  to 
that  portion  of  the  book  taken  down  (as  testified)  in  the  pres- 
ence of  Mrs.  Kate  C.  McDougal,  and  by  direction  of  Mrs. 
Caroline  McDougal;  but  the  former  witness  says  that  the 
matter  was  written  at  the  time  of  Mrs.  Caroline  McDougal 's 
departure  for  Europe,  "in  the  fall  of  1870." 

This  evidence  of  Mrs.  Kate  McDougal  is  met  by  the  denial 
of  Mrs.  Caroline  McDougal  of  any  knowledge  of  the  book 


Estate  or  McDougal.  471 

or  of  its  contents,  or  of  any  interview  with  her  son  such  as 
was  stated,  at  which  the  entries  were  taken  down. 

Now,  assuming  the  fact  to  be  as  stated,  irrespective  of  the 
flat  denial  by  the  party  charged  with  making  the  admissions 
contained  in  those  entries  or  memoranda,  what  do  the  entries 
impart  ? 

The  purple  ink  memoranda  begin:  "Mrs.  Caroline  Mc- 
Dougal possesses  the  following  property,  viz.":  then  follows 
enumeration  including  the  property  in  question.  It  is  a  fact 
that  Mrs.  Caroline  McDougal  did  "possess"  that  property, 
in  so  far  as  holding  it  in  her  name,  so  that  that  statement 
cannot  operate  as  a  negation  of  the  ownership  by  Mrs.  Van 
Voorhies;  but  on  the  page  following  the  "general  instruc- 
tions" is  the  statement:  "Mrs.  D.  W.  Van  Voorhies  owns 
three  houses  and  lots,"  etc.  Here  the  writer  seemed,  by  his 
manner  of  entering  the  memoranda,  to  make  a  distinction 
between  the  "possession"  of  property  and  the  "ownership." 
Is  there  any  argument  deducible  from  the  omission  in  this 
last  referred  to  page,  of  the  property  back  of  Tubbs'  Hotel? 
Certainly  no  implication  injurious  to  the  right  of  Mrs.  Van 
Voorhies  can  arise  therefrom,  because  there  is  no  doubt  she 
had  nothing  to  do  with  the  making  of  the  memoranda;  at 
that  time  she  was  in  Europe.  But  it  is  true  Mrs.  Caroline 
McDougal  possessed  that  property,  and  did  so  in  the  man- 
ner always,  from  the  time  of  its  alleged  purchase,  as  testi- 
fied to,  until  the  conveyance  to  Mrs.  D.  W.  Van  Voorhies; 
but  so  far  as  these  memoranda  are  concerned,  it  is  worth 
while  to  consider  critically  how  far  they  impute  to  her  "owner- 
ship." If  these  memoranda  were  all  made  at  one  time — the 
memoranda  embraced  in  these  five  pages — there  must  have 
been  some  distinction  running  through  the  mind  of  the  writer 
as  to  "possession"  and  "ownership."  But  the  utmost  im- 
portance that  can  attach  to  these  entries  is  their  significance 
as  admissions  by  Mrs.  Caroline  IMcDougal.  They  are  not 
the  declarations  of  the  deceased,  Charles  J.  I\rcDougal,  for 
they  come  under  no  rule  entitling  them  to  be  so  considered. 
If  they  have  any  value,  they  are  the  admissions  of  Mrs.  Caro- 
line ^McDougal,  and  are  to  be  considered  as  of  no  greater 
worth  than  if  the  writer  were  living  and  orally  testifying  to 


472  Coffey  ^s  Probate  Decisions,  Vol.  1. 

them.  They  are  of  no  more  account  than  any  other  verbal 
admissions,  which,  as  the  treatises  on  evidence  repeatedly 
remark,  ought  to  be  received  with  great  caution,  as  it  is  sub- 
ject to  much  imperfection  and  mistake,  the  party  himself 
either  being  misinformed  or  not  having  clearly  expressed  his 
own  meaning  or  the  witness  having  misunderstood. 

Another  point  in  which  this  testimony  may  be  considered 
and  criticised:  At  the  time  of  the  admission  or  entry,  it  was 
in  favor  of  and  not  against  the  interest  of  the  party  who,  it 
is  claimed,  dictated  it,  and  such  declaration  might  be  assailed 
as  disentitled  to  consideration  on  that  account. 

The  statute,  also,  in  treating  of  the  effect  of  evidence,  de- 
clares that  the  evidence  of  the  oral  admissions  of  a  party 
must  be  received  with  caution:  Code  Civ.  Proc,  sec.  2061. 
But  how  could  the  admission  of  Mrs.  Caroline  McDougal 
in  her  own  favor  charge  the  property  of  Mrs.  Van  Voorhies? 
Or  how  is  the  latter  to  be  affected  by  entries  made  without 
her  cognition  or  consent?  This  character  of  evidence  can- 
not be  too  carefully  scrutinized  or  too  closely  criticised.  In 
all  cases  it  is  the  most  dangerous  species  of  evidence  that 
can  be  admitted  in  a  court  of  justice,  and  the  most  liable  to 
abuse.  In  most  cases  it  is  impossible,  however  honest  the 
witness  may  be,  for  him  to  give  the  exact  words  in  which 
the  declaration  or  admission  was  made.  Much  more  might 
be  said  to  the  same  purport,  but  it  is  not  necessary  to  repeat 
statements  of  principles  well  understood  by  counsel,  or  to 
transcribe  from  text-books  or  books  of  decisions. 

So  far  as  the  contents  of  this  memorandum  or  account- 
book  of  Charles  J.  McDougal  are  concerned,  it  could  not  oc- 
cupy any  place  in  this  controversy  without  the  illustrative 
testimony  of  Mrs.  Kate  Coffee  ]\IcDougal.  That  testimony 
tends  to  connect  with  the  entries  Mrs.  Caroline  McDougal, 
but  she  denies  the  whole  statement.  Oath  opposed  to  oath, 
so  far  as  that  interview  is  concerned,  if  all  other  things  are 
equal,  the  charge  must  fall.  As  to  the  import  and  import- 
ance of  its  contents,  enough  has  been  said. 

The  title  stood  in  the  name  of  Mrs.  Caroline  McDougal. 
it  was  "possessed"  by  her,  and  at  the  time  indicated  in  the 
testimony  it  was  not  esteemed  of  great  value,  and  the  right 


Estate  op  McDougal.  473 

to  dispose  of  it,  in  case  of  emergency,  was  given  by  Mrs.  Van 
Voorhies  to  Mrs.  Caroline  McDougal.  It  is  not  remarkable, 
therefore,  that  it  was  treated  as  if  it  belonged  to  the  latter. 
But  it  is  noteworthy  that  nowhere  in  the  testimony  is  there 
any  claim  or  assertion  that  David  McDougal  ever  laid  any 
claim  to  its  ownership.  Repeatedly,  and  under  various  con- 
ditions, has  it  been  reported  that  he  spoke  of  it  as  his  daugh- 
ter's property,  sometimes,  it  is  said,  although  this  testimony 
is  very  vague,  as  his  wife's,  but  never  as  his  own.  The  peti- 
tioner says  the  recital  of  a  consideration  raises  a  presump- 
tion in  favor  of  its  being  community  property ;  'the  law  says 
that  the  recital  of  a  consideration  is  not  conclusive  as  to  the 
fact,  and  the  testimony  here  is  to  the  effect  that  Mrs.  Caro- 
line McDougal  never  paid  anything  to  the  grantor,  and  who- 
soever paid  it,  it  might  be  construed  as  given  to  her,  so  that 
at  all  events  there  is  something  to  show  it  never  was  com- 
munity property — no  testimony  is  in  to  that  purport — so 
that  argument  as  to  that  is  vain ;  it  is  founded  at  most  on  a 
presumption  overthrown  by  evidence,  unless  the  court  greatly 
errs  in  its  view  of  the  testimony. 

With  regard  to  the  letters  produced  from  Mrs.  Van  Voor- 
hies to  her  husband,  and  their  effect  upon  the  main  item  of 
her  testimony,  with  respect  to  the  purchase  of  the  property, 
while  they  show  she  received  some  sums  of  money  from  him 
from  time  to  time  and  breathe  a  spirit  of  affection,  there  is 
throughout  an  intimation  of  straitened  circumstances  and  de- 
pendence on  some  other  source.  One  letter,  underlined  by 
petitioner  in  pencil,  says:  ''I  enclose  you  the  last  bill  I  have 
received  for  Carrie's  schooling,  without  her  music,  whicli  T 
wish  you  would  attend  to  at  once.  Charlie  sent  the  £7  in  his 
last  letter  which  you  intended  to  go  towards  her  other  bill ; 
but  as  it  is  not  nearly  the  sum,  I  wish  you  would  lose  no  time 
in  sending  the  amount  of  this  one." 

The  sentences  subsequent  to  this  are  not  underlined:  "I 
find  I  am  ver>^  much  cramped  for  money,  but  Carrie  must 
have  her  school  bills  paid.  I  can  do  without  a  great  deal 
that  others  have,  but  Carrie  must  be  educated.  It  is  a  sacred 
duty  of  a  parent  to  a  child,  and  you  are  fortunate  in  only 
having  one,  and  one.  too,  who  has  never  cost  you  very  much." 


474  Coffey's  Probate  Decisions,  Vol.  1. 

This  is  a  letter  from  Florence,  November  29th,  no  year 
indicated.  There  are  many  other  sentences  in  the  letters  in 
a  similar  strain ;  also  intimations  as  to  his  infirmity  of  in- 
temperance, and  admonitions  which,  in  this  opinion,  have 
been  already  alluded  to,  and  showing  without  doubt  that  her 
condition  of  mind  was  not  very  happy ;  that  she  was  in  finan- 
cial straits;  that  she  had  other  source  of  subsistence  than  his 
contributions  afforded.  Were  their  relations  cordial,  con- 
trary to  her  evidence?  Do  these  letters  show  that,  or  are 
they  a  thin  veneering  put  on,  as  she  said,  to  "keep  up  ap- 
pearances," and  to  do  what  she  could  to  maintain  an  atti- 
tude of  amity  on  account  of  her  child?  Is  it  not  a  pregnant 
fact,  supporting  her  statement  on  the  stand,  that  from  the 
time  she  went  to  Europe  until  in  this  very  courtroom  in  this 
controversy,  she  never  saw  her  husband,  and  marital  rela- 
tions were  never  resumed,  and,  although  writing  tender  mis- 
sives until  within  a  month  of  her  return  to  this  city,  she 
came  incognito,  and  neither  sought  the  other  out? 

Is  it  not,  also,  to  be  w^eighed  that  he  himself  testified  that 
he  could  not,  by  reason  of  his  condition,  support  her  while 
in  Europe ;  that  such  money  as  he  sent  came  from  another 
source;  that  he  was  furnished  with  funds  to  go  to  Aurora 
by  her  mother,  the  executrix  here;  that  the  money  he  sent 
from  Aurora  went  to  purchase  the  property  in  front  of 
Tubbs '  Hotel ;  that  her  mother  gave  her  funds  to  go  with 
her  and  his  child  to  Europe;  that  he  took  $100  of  that 
money  from  her;  that  during  a  long  period,  from  1857  to 
the  time  of  the  dissolution  of  the  community,  his  habits  were 
such  as  to  destroy  his  ability  to  support  her,  and  that  it  is 
in  proof  that  was  largely,  at  least,  if  not  mainly  or  wholly, 
dependent  upon  her  parents?  I  am  requested  to  disregard 
the  testimony  of  Mrs.  Van  Voorhies  as  to  the  purchase  of 
the  property,  because  of  her  contradictions  in  the  respect  of 
the  letters  and  her  relations  with  her  husband,  and  remit- 
tances from  her  husband,  and  certain  other  remittances;  but 
the  testimony  must  be  regarded  as  a  whole,  and  the  court 
is  not  warranted  in  imputing  inveracity  to  a  witness,  un- 
less it  appears  that  willful  falsehood  has  been  told.  "A 
witness  false  in    one    part    of    his    testimony    is    to    be    dis- 


Estate  of  McDougal.  475 

trusted";  but  the  court  should  be  satisfied  that  the  witness 
has  testified  falsely,  and  then  the  evidence  must  be  distrusted. 
To  distrust  and  reject  utterly  may  be  discriminated;  but 
it  is  unnecessary  to  discuss  the  meaning  of  terms,  if  the 
substance  of  her  statement  be  corroborated.  There  is  no  in- 
herent improbability  in  the  story  of  the  purchase;  the  price 
was  not  inadequate;  the  motive  was  not  incredible;  the 
means  of  acquiring  the  money  to  purchase  were  such  as 
might  well  be  believed;  the  deposit  of  title  in  her  mother 
in  itself,  as  a  prudential  measure,  was  not  an  extraordinary 
act.  She  swears  she  bought  it  in  the  manner,  and  with  the 
money  acquired  as  already  told;  her  mother  tells  a  like  tale; 
her  sister  confirms  her  story  as  to  the  reputation  of  owner- 
ship in  the  family,  and  what  her  father  told  her  (vol.  2, 
Reporter's  Notes,  p.  4)  ;  Mr.  Le  Breton  testifies  in  the  same 
strain ;  but  the  petitioner  says  all  the  testimony  must  be  re- 
jected; because  they  are  concerned  with  the  executrix.  The 
court  cannot  perceive  how  Mr.  Le  Breton  and  his  wife  can 
be  interested  in  the  appropriation  of  these  assets,  and  the 
court  must  apply  legal  rules  in  testing  such  questions;  but 
there  are  circumstances  of  corroboration  in  the  testimony 
of  Mr.  Van  Alen,  already  referred  to,  and  in  the  testimony 
of  one  of  the  Pattens,  called  by  petitioner,  and  in  the  testi- 
mony of  Hezekiah  P.  Jones,  called  by  petitioner,  from  whom 
Mrs.  Van  Voorhies  claimed  to  have  made  the  purchase;  and, 
in  the  same  connection,  it  ought  to  be  noted  that  there  was 
no  attempt  apparent,  upon  the  part  of  respondent,  to  shut 
out  testimony;  and  much  has  come  in  that  might  have  been 
questioned  with  respect  to  relevancy  and  competency.  A 
disposition  to  meet  and  not  to  evade  the  issue  was  so  far 
manifested. 

It  was  incumbent  upon  petitioner  to  maintain  his  charge 
by  a  preponderance  of  proof.  The  obligation  of  proving 
any  fact  lies  upon  the  party  who  substantiality  asserts  the 
affirmative  of  the  issue.  This  is  a  familiar  and  cardinal  rule 
of  evidence.  Has  the  petitioner  complied  with  this  legal  obli- 
gation? His  own  opinion  of  his  success  may  be  quoted  from 
his  first  brief  (page  31),  and  it  is  here  inserted:  "We  re- 
peat what  we  stated  in  our  argument:  If  the  fraud  and  in- 
competency proven  in  this  case  are  not  sufficient  to  convince 


476  Coffey's  Probate  Decisions,  Vol.  1. 

the  court  of  the  unfitness  of  the  executrix  for  her  trust,  let 
these  provisions,  under  which  we  proceed,  be  stricken  from 
the  statute  book,  and  let  it  be  known  to  litigants  that  such 
is  the  case.     It  will  thenceforth  be  safe  for  any  number  of 
heirs,  actuated  by    selfish    motives,    to    conspire    and    spirit 
away  property  belonging  to  an  estate,  and  although  it  may 
then  be  proven  from  old  residents,  from  old  family  records 
and  memoranda,  accounts  from  old  agents,  that  the  property 
for  over  twenty  years  belonged  to  the  estate,  that  as  such 
all  acts  of  ownership  were  performed  by  the  deceased,  and 
although  the  veracity  of  the  conspiring  heirs  has  been  at- 
tacked  by  contradicting  their    testimony    in    almost    every 
point,  in  a  most  convincing  manner,  let  it  be  known  that  it 
will  be  sufficient  for  those  heirs  to  deny,  and  to  concoct  a 
theory  of  their  own,  uncorroborated  by  any  testimony  or  any 
document  to  insure  for  them  immunity  for  their  covin,  and 
the  court  will  pronounce  them  proper  persons  to  hold  posi- 
tions of  honor  and  trust." 

Most  assuredly,  if  the  counsel's  assumptions  of  the  facts 
established  here  were  well  based,  this  court  would  make  no 
such  announcements ;  and  whatever  announcement  the  court 
makes,  it  must  respond  to  the  touchstone  of  evidence  and 
the  rules  by  which  evidence  is  tested.     But,  in  the  opinion 
of  the  court,  the  counsel  errs  in  assuming  so  much  as  proved 
"from  old  residents";  it  is  not  proved  by  the  Pattens,  nor 
by  Van  Alen,  for  their  testimony  tends  in  a  contrary  direc- 
tion ;  ' '  old  family  records "  I  do  not  understand  to  be  in 
evidence,    the   evidential    character   of   the   account-book    of 
Charles   J.    McDougal   has   been    already    discussed    by   the 
court;  "accounts  from  old  agents  that  the  property  for  over 
twenty  years  belonged  to  the  estate,  that  as  such  all  acts  of 
ownership  were  performed  by  the  deceased ' ' ;  this  is  an  er- 
roneous assumption  of  counsel;  for  the  twenty  years  alluded 
to  the  deceased  never  claimed  or  acted  as  owner,  nor  was  the 
property  at  any  time  in  his  name;  there  is  no  evidence  here 
that  he  asserted  title  in  himself,  the  most  that  can  be  claimed 
is  that  he  said  it  was  Mrs.  McDougal's;  but  I  have  already 
dwelt  upon  this  point,  also  upon  the  quantity  and  quality 
of  the  evidence  for  the  respondent,  which,  in  my  view  of  the 
law  of  evidence,  I  am  compelled  to  consider  preponderant 


Estate  of  McDougal.  477 

as  to  the  point  of  the  purchase  of  the  property.  Of  course, 
if  I  am  warranted  in  finding  the  story  of  the  purchase,  told 
by  Mrs.  Van  Voorhies,  sustained  by  the  whole  evidence,  the 
charge  of  covinous  conduct  against  this  executrix  must  fall. 
This  disposes  of  the  last  charge  specified. 

I  do  not  think  the  charge  generally  of  incompetency  and 
mismanagement  is  supported  by  proofs.     The  executrix  may 
have  been   in  some  instances  misadvised  by  counsel,   as  to 
the  making  up  of  the  inventory,  for  example,  and  the  ap- 
plication for  allowance  as  to  the  amount,  and  there  may  be 
in  our  mind  an  unfriendly  feeling  toward  the  mother  of  the 
minors,  vfho  is  striving    to    obtain    what    she    can    by   legal 
means  for  her  children ;  but  the  court  cannot  for  those  rea- 
sons of  sentiment  adjudge  the  executrix  incompetent.     The 
court  will  endeavor  to  conserve  the  interests  of  the  minors, 
and  will,  at  all  times,  aid  their  attorney  in  obtaining  for 
them  their  full  rights;  and  it  is  proper  here  to  say  that  any 
application  in  that  behalf  will  be  welcomed  by  this  court, 
which  regards  with  the  highest  favor,  as  such  courts  should 
always  regard,  the  claims  of  minor  heirs.     Impressed  with 
the  conviction  that  the  petitioner  began  and  has  prosecuted 
this  proceeding  in  good  faith  and  upon  grounds  apparently 
justifying   it;    and   recognizing   the   force   of   his   argument 
that  the  adverse  counsel  should  have  shown  greater  consid- 
eration,   courtesy    and    candor    toward    the    mother    of    the 
minors,  who  is  entitled  to  be  treated  with  respect,  and  has 
an  incontestable  legal  right  to  urge  the  claims  of  her  chil- 
dren; and,  also,  believing  that  if  the  counsel  for  the  execu- 
trix had  advised  her  that  the  petitioner  was  at  least  mor- 
ally entitled  to  be  enlightened  as  to  all  the  facts  eompul- 
sorily  developed  in  this  investigation,  and  that,  therefore,  a 
certain  responsibility  for  this  proceeding  rests  upon  the  re- 
spondent, the  costs  are  imposed  upon  her,  and  with  this  un- 
derstanding the  petition  must  be  denied.     Let  findings  be 
prepared    to    correspond    with    the    conclusions    herein    an- 
nounced. 


478  Coffey's  Probate  Decisions,  Vol.  1. 


Estate  of  ROBERT  J.  TIFFANY,  Deceased. 
[No    5,317;    decided    December    24,    1887.] 

Will — Testamentary  Capacity — Intoxication. — A  man  temporarily 
overcome  by  a  single  debauch  is,  for  the  time  being,  of  unsound 
mind,  and  has  not  testamentary  capacity;  so  a  person  to  whom  in- 
toxication has  become  such  a  habit  that  his  intellect  is  disordered 
and  he  has  lost  the  rational  control  of  his  mental  faculties,  is  of 
unsound  mind. 

Will  Contest. — Where  the  Questions  of  Unsoundness  of  Mind  and 
Undue  Influence  are  presented  in  the  same  case,  and  in  their  con- 
sideration may  overlap  one  the  other,  it  has  been  said  that  as  legal 
propositions  they  are  to  be  kept  distinct  and  apart.  But  considering 
the  two  issues  together,  it  is  noted  that  although  mere  weakness  of 
intellect  does  not  prove  undue  influence,  yet  it  may  be  that  in  such 
feeble  state,  with  the  mind  weakened  by  sickness,  dissipation  or  age, 
the  testator  more  readily  and  easily  becomes  the  victim  of  the  im- 
proper influences  of  those  who  see  fit  to  practice  upon  him. 

Will — Unreasonableness  does  not  Vitiate. — The  will  of  one  having 
testamentary  capacity  cannot  be  avoided  because  unaccountably  con- 
trary to  the  common  sense  of  the  country.  If  not  contrary  to  the 
law,  it  stands  for  the  descent  of  his  property,  whether  his  reasons 
for  it  are  good  or  bad,  provided  they  are  his  own  reasons,  not  in- 
fluenced by  the  unlawful  influence  of  others. 

Will — ^Undue  Influence. — There  is  a  Distinction  Between  the  In- 
fluence of  a  Lawful  Relation  and  that  of  an  unlawful  relation.  A 
lawful  influence,  such  as  that  arising  from  legitimate  family  and 
social  relations,  must  be  allowed  to  produce  its  natural  results,  even 
in  influencing  the  execution  of  a  will.  However  great  the  influence 
thus  generated,  there  is  no  taint  of  unlawfulness  in  it;  nor  can 
there  be  any  presumption  of  its  unlawful  exercise  merely  because 
it  is  known  to  have  existed  and  to  have  manifestly  operated  on  the 
testator's  mind  as  a  reason  for  his  testamentary  disposition.  It  is 
only  when  such  influence  is  exerted  over  the  very  act  of  devising, 
preventing  the  will  from  being  truly  the  testator's  act,  that  the  law 
condemns  it  as  vicious. 

Will — Undue  Influence. — While  the  Natural  Influence  of  a  Lawful 
Relation  must  be  lawful,  even  where  affecting  testamentary  disposi- 
tions, the  natural  or  ordinary  influence  of  an  unlawful  relation  must  be 
unlawful,  in  so  far  as  it  affects  testamentary  dispositions  favorably 
to  the  unlawful  relations  and  unfavorably  to  the  lawful  heirs.  So, 
it  would  be  doing  violence  to  the  morality  of  the  law,  and  thus  to 
the  law  itself,  if  courts  should  apply  the  rule  recognizing  the  natural 
influence  arising  out  of  legitimate  relationship  to  unlawful  as  well  as 


Estate  of  Tiffany.  479 

to  lawful  relations;   and  thereby  make   them  both   equal,   in   this   re- 
gard at  least,  which  is  contrary  to  their  very  nature. 

Maxim. — No  One  Shall  Derive  any  Profit,  Through  the  Law,  by  the 
influence  of  an  unlawful  action  or  relation. 

Wills — Undue  Influence. — If  the  Law  Always  Suspects  and  Inex- 
orably Condemns  undue  influence,  and  presumes  it  from  the  nature 
of  the  transaction,  in  the  legitimate  relations  of  attorney,  guardian 
and  trustee,  much  more  sternly  should  it  deal  with  unlawful  rela- 
tions, where  they  are,  in  their  nature,  relations  of  influence  over  the 
kind  of  act  under  investigation.  In  their  legitimate  operation,  trust 
positions  of  influence  are  respected;  but  where  apparently  used  for 
selfish  advantage  they  are  viewed  with  deep  suspicion;  and  it  would 
be  strange  if  unlawful  relations  should  be  more  favorably  regarded. 

WiU — ^Undue  Influence. — General  Cases  and  Authorities,  as  to  what 
does  and  what  does  not  constitute  undue  influence,  are  inapplicable  in 
a  case  where  the  influence  charged  originated  and  was  exercised  under 
an  unlawful  relation. 

Will — Insane  Delusion. — If  a  Person  Persistently  Believes  Supposed 
Facts  which  have  no  real  existence  except  in  his  perverted  imagina- 
tion, and  against  all  evidence  and  probability,  and  conducts  him- 
self, however  logically,  upon  the  assumption  of  their  existence,  he 
is,  as  far  as  they  are  concerned,  under  a  morbid  delusion;  and  de- 
lusion in  that  sense  is  insanity.  So,  if  a  testator  labored  under  such 
a  delusion  in  respect  to  his  wife  and  family  connections,  who  would 
naturally  have  been  the  objects  of  his  testamentary  bounty,  and  the 
court  can  see  that  the  dispository  provisions  of  his  alleged  will  were 
or  might  have  been  caused  or  affected  by  the  delusion,  the  instru- 
ment  is   not   his   will. 

Will — Evidence  of  Undue  Influence. — Upon  the  issue  of  undue  in- 
fluence in  the  execution  of  wills,  the  evidence  must  often  be  indirect 
and  circumstantial.  Very  seldom  does  it  occur  that  a  direct  act  of 
influence  is  patent;  persons  intending  to  control  the  actions  of  an- 
other, especially  as  to  wills,  do  not  proclaim  the  intent.  The  ex- 
istence of  the  influence  must  generally  be  gathered  from  circum- 
stances, such  as  whether  the  testator  formerly  intended  a  dift'erent 
disposition;  whether  he  was  surrounded  by  those  having  an  object 
to  accomplish,  to  the  exclusion  of  others;  whether  he  was  of  such 
weak  mind  as  to  be  subject  to  influence;  whether  the  instrument  is 
such  as  would  probably  be  urged  upon  him  by  those  around  him; 
whether  they  are  benefited  to  the  exclusion  of  formerly  intended 
beneficiaries. 

W'ill — Intoxication  and  Undue  Influence. — The  testator  in  this  case 
had  been  a  prominent  and  respected  citizen,  but  for  some  years  be- 
fore his  death  he  became  an  habitual  drunkard,  and  after  becoming 
such  his  whole  being  changed  witli  respect  to  his  affection  for  his 
wife  and  children,  as  well  also  in  his  personal  habits  and  his  social 


480  Coffey's  Probate  Decisions,  Vol.  1. 

nature  and  disposition.  During  this  period  lie  became  acquainted, 
while  taken  away  from  home,  with  a  woman  whom  he  permitted  to  act 
as  his  nurse;  and  who  subsequently  obtained  a  control  over  him,  to 
the  exclusion  of  his  family,  and  so  that  he  never  again  returned  to 
his  wife  or  children.  Six  months  before  his  death  he  executed  a  will 
wherein  this  woman  was  made  residuary  legatee,  and  for  nearly  all 
his  estate;  his  wife  and  children  were  expressly  excluded  by  the  in- 
strument. They  contested  the  probate  of  the  will,  and  tendered  as  is- 
sues unsoundness  of  mind,  and  undue  influence  exercised  by  the 
residuary  legatee.  The  court  found  in  favor  of  the  contestants  upon 
both  issues,  and  denied  the  probate  of  the  will. 

W.  W.  Foote  and  T.  C.  Coogan,  for  contestants. 

E.   N.   Deuprey,   for  respondents  and  proponents,  J.   W. 
Brumagim  and  W.  M.  Pierson. 

COFFEY,  J.  On  the  tenth  day  of  June,  1886,  there  was 
filed  in  this  court  the  petition  of  William  M.  Pierson  and 
John  AV.  Brumagim,  setting  forth  that  Robert  Joyce  Tiffany 
died  on  the  sixth  day  of  June,  1886 ;  that  he  was  a  resident, 
at  the  time  of  his  death,  of  the  city  and  county  of  San  Fran- 
cisco, state  of  California,  and  left  an  estate  in  said  city  and 
county  consisting  of  real  and  personal  property,  the  real 
estate  consisting  of  about  fourteen  parcels  of  land,  one  par- 
eel  of  land  improved  with  buildings  and  the  others  vacant; 
that  the  improved  real  estate  brings  in  a  rental  of  about 
$200  a  month,  all  of  which  real  estate  is  valued  at  about 
$30,000,  and  personal  property  at  about  $500;  all  of  which 
real  and  personal  property  is  alleged  to  be  the  separate 
property  of  the  deceased.  That  said  deceased  left  a  will 
dated  the  15th  of  November,  1885,  and  a  codicil  bearing  the 
date  the  15th  of  December,  1885,  in  the  possession  of  the 
petitioner,  Pierson,  which  the  petitioners  believe  and  allege 
to  be  the  last  will  and  testament  of  the  deceased;  that  the 
petitioners,  Pierson  and  Brumagim,  are  named  in  said  will 
as  executors;  that  Cecilia  Harvey  McGregor,  infant  daugh- 
ter of  Emma  M.  McGregor,  Alice  Tiffany,  the  Old  People's 
Home  of  San  Francisco,  the  managers  of  the  Kindergarten 
School  on  Mission  street  near  Twenty-ninth  street,  San 
Francisco,  the  Boys'  and  Girls'  Aid  Society  of  San  Fran- 
cisco, Willie  Patterson,  Mrs.  John  Marshall  and  Mrs.  Lura 
Churchill  are  named  in  said  will  as  legatees  and  devisees; 


Estate  of  Tiffany.  481 

that  said  Cecilia  Harvey  McGregor  and  Willie  Patterson 
are  minors,  and  reside  in  said  city  and  county  of  San  Fran- 
cisco ;  that  Alice  Tiffany  is  the  adult  sister  of  the  deceased, 
and  resides  out  of  the  state  of  California,  and  in  the  state 
of  New  York;  that  Mrs.  John  Marshall  and  Mrs.  Lura 
Churchill  are  adults  and  reside  in  San  Francisco;  that  the 
said  Old  People's  Home,  the  managers  of  said  Kindergarten 
School  and  the  Boys'  and  Girls'  Aid  Society  are  charitable 
and  educational  institutions  existing  in  San  Francisco ;  that 
the  subscribing  witnesses  to  said  will  are  Walter  B.  Ander- 
son and  Charles  Rowell,  and  to  said  codicil  George  W.  Rey- 
nolds and  S.  H.  Regensburger,  all  residing  in  San  Francisco; 
that  the  next  of  kin  of  said  testator  and  his  heirs  at  law  are ; 
Phoebe  Jane  Tiffany,  his  surviving  wife,  Peer  Tiffany  and 
William  Tiffany,  his  sons  of  adult  years,  and  his  daughter 
Emma  M.  McGregor,  of  adult  years,  residing  in  said  city 
and  county;  that  at  the  time  said  will  was  executed,  to  wit, 
on  said  fifteenth  day  of  November,  1885,  and  at  the  time 
said  codicil  was  executed  on  said  fifteenth  day  of  Decem- 
ber, 1885,  the  said  testator  was  over  the  age  of  eighteen 
years  of  age,  to  wit,  over  sixty  years,  and  was  of  sound  and 
disposing  mind  and  not  acting  under  duress,  menace,  undue 
influence  or  fraud,  and  in  every  respect  was  competent  by 
last  will  to  dispose  of  all  his  estate,  and  that  said  will  was 
duly  executed  according  to  law.  Wherefore,  the  petitioners 
pray  that  the  will  and  codicil  be  admitted  to  probate. 

The  will  and  codicil  referred  to  in  the  foregoing  petition 
are  in  the  following  words: 

"(1.)  I  bequeath  to  said  Cecilia  Harvey  McGregor,  my 
grandchild,  the  daughter  of  my  daughter  Emma  M.  Mc- 
Gregor, the  sum  of  five  hundred  dollars,  to  be  paid  to  the 
said  Emma  M.  McGregor  for  the  use  of  her  said  daughter. 

"  (2.)  I  bequeath  to  my  sister,  Alice  Tiffany,  five  hundred 
dollars. 

"  (3.)  I  bequeath  to  the  Old  People's  Home  of  San  Fran- 
cisco five  hundred  dollars. 

"(4.)  I  bequeath  to  the  Manager  or  Managers  of  the 
Kindergarten  School  on  IMission  street,  near  Twenty-ninth 
street,  San  Francisco,  five  hundred  dollars. 

Prob.  Dec,  Vol.  I — 31 


482  Coffey's  Probate  Decisions,  Vol.  1. 

"(5.)  I  bequeath  to  the  Boys'  and  Girls'  Aid  Society  of 
San  Francisco  five  hundred  dollars. 

"(6.)  I  direct  that  a  scholarship  in  the  best  business  col- 
lege in  San  Francisco  be  bought  by  my  executors  in  the 
name  and  for  the  benefit  of  little  "Willie  Patterson,  the 
grandson  of  P.  J.  Cody. 

"  (7.)  All  the  rest  and  residue  of  my  real  estate,  personal 
and  mixed,  I  devise  and  bequeath  to  Mrs.  Lura  A.  Churchill, 
who  has  been  to  me  in  all  my  sickness  a  true  and  tender 
friend  and  nurse. 

"(8.)  Should  any  of  the  bequests  to  any  of  the  educa- 
tional or  charitable  organizations  in  this  will  fail  for  any 
reason,  then  such  bequests  are  to  go  into  the  rest  and  resi- 
due of  my  estate. 

''  (9.)  I  have  made  no  provision  in  this  will  for  my  wife, 
nor  for  my  children.  Peer,  William  and  Emma,  for  the  rea- 
son that  by  a  deed  and  agreement  of  separation  made  some 
years  ago  between  myself  and  wife,  she  was  fully  provided 
for,  and  for  the  further  reason  that  the  conduct  of  my  said 
wife  and  children  towards  me  since  that  time  does  not  com- 
mend them,  or  either  of  them,  to  my  consideration. 

' '  ( 10. )  I  now  make  and  appoint  John  W.  Brumagim  and 
William  M.  Pierson  the  executors  of  this  will,  and  direct 
that  no  bonds  be  required  of  them  for  the  performance  of 
their  duties  as  such  executors ;  and  I  further  direct  that  if 
it  shall  be  considered  advisable  by  my  said  executors  to  sell 
all  or  any  portion  of  my  estate,  they  may  do  so  without  the 
order  of  any  Court. 

"In  witness  whereof  I  have  hereunto  set  my  hand  and 
seal,  this  fifteenth  day  of  November,  in  the  year  eighteen 
hundred  and  eighty-five. 

"[Seal]  R.  J.  TIFFANY. " 

(Here  follows  attestation  clause.) 

' '  Witnesses : 

"WALTER  B.  ANDERSON,  426  Kearny  Street. 
"CHARLES  ROWELL,  1330  Pine  Street. 
"By  this  codicil  to  the  above  last  will  and  testament,  I 
bequeath  to  Mrs.  John  W.  Marshall,  of  San  Francisco,  the 


Estate  of  Tiffany.  483 

sum  of  five  hundred  dollars,  and  in  all  other  respects  con- 
firm and  publish  said  will. 

"San  Francisco,  December  15,  1885." 

(Here  follows  attestation  clause.) 

'  *  Witnesses : 
''GEORGE  W.  REYNOLDS,  609  Sacramento  Street. 
"S.  H.  REGENSBURGER,  2141/2  Grove  Street." 

STATEMENT  OF   CONTEST. 

On  the  fifteenth  day  of  September,  1886,  there  was  filed 
an  amended  contest  by  the  widow  and  children  of  the  de- 
ceased to  the  probate  of  the  instruments  hereinabove  copied, 
in  which  were  alleged  as  reasons  for  contest  and  grounds 
of  opposition  (1)  that  at  the  time  of  the  execution  of  said 
will  and  of  the  codicil  said  deceased  was  not  competent  to 
execute  said  will  or  said  codicil  and  was  not  at  either  of 
said  times  of  sound  and  disposing  mind,  but  was  incompe- 
tent to  execute  said  will  or  said  codicil,  he  being  at  both  said 
times  insane;  (2)  that  at  both  the  times  last  above  mentioned 
said  deceased  was,  and  for  many  years  prior  thereto  had 
been,  habitually  intemperate  from  the  excessive  use  of  in- 
toxicating liquors,  and  was  by  reason  thereof  incapacitated 
from  and  incompetent  to  execute  said  will  and  said  codicil. 
And,  for  a  further  and  separate  ground  of  opposition  and 
contest,  it  was  alleged  that  at  the  time  of  the  execution  of 
the  said  will  and  codicil  the  said  deceased  was  not  free  from 
duress,  menace,  fraud  and  undue  influence,  but  said  de- 
ceased was  at  both  times  unduly  influenced  by  the  residuary 
legatee  named  in  said  will  to  execute  both  said  will  and  said 
codicil;  and  in  support  of  the  allegation  of  undue  influence 
on  the  part  of  the  residuaiy  legatee  the  contestants  allege  as 
follows,  that : 

(a)  Prior  to  the  execution  of  said  will  and  said  codicil 
the  said  residuary  legatee  induced  the  deceased  to  separate 
from  his  said  wife  and  children,  and  to  occupy  the  same 
apartments  occupied  by  her  at  a  lodging-house  situated  at 
the  southeast  corner  of  Fifth  and  Market  streets,  in  the  city 
and  county  of  San  Francisco,  and  thereafter  prevailed  upon 
the  deceased  to  continue  his  said  separation  and  occupation 


484  Coffey's  Probate  Decisions,  Vol.  1. 

of  said  apartments  with  her,  and  he  was  so  occupying  them 
at  the  times  of  the  execution  of  said  will  and  said  codicil. 

(&)  Prior  to  the  execution  of  said  will  and  said  codicil, 
and  prior  to  the  time  he  separated  from  his  wife  and  chil- 
dren, and  while  he  was  so  living  separate  from  them,  as  last 
above  stated,  the  said  residuary  legatee  poisoned  the  mind 
of  the  deceased  against  the  contestants  by  falsely  asserting 
to  the  deceased  that  the  contestants  had  caused  him,  the  de- 
ceased, to  be  placed  in  an  insane  asylum  and  in  the  Home 
for  the  Inebriates,  situated  in  the  city  and  county  of  San 
Francisco,  without  any  cause;  and  that  they,  the  contest- 
ants, were  inimical  to  him,  and  would  again  place  him  in 
an  insane  asylum  or  Home  for  the  Inebriates  if  he  should 
return  and  live  with  his  wife  and  children ;  that  deceased  be- 
lieved these  assertions  of  the  residuary  legatee,  and  at  the 
times  of  the  execution  of  said  will  and  said  codicil  the  de- 
ceased was  laboring  under  the  delusion  that  they  were  true; 
and  the  contestants  allege  that  said  assertions,  each  and  all 
of  them,  were  false,  and  known  to  the  residuary  legatee  to 
be  such. 

(c)  Prior  to  the  execution  of  said  will  and  said  codicil 
said  residuary  legatee  abused  contestants  in  the  presence  of 
deceased,  and  told  him  that  contestants  had  turned  him  out 
of  his  own  home  and  into  the  streets;  that  contestants  had 
no  love  for  him,  and  that  she  was  the  only  true  friend  that 
he  had;  and  that  the  reason  why  contestants  desired  the  de- 
ceased to  live  again  with  his  wife  and  children  was  that 
they,  the  contestants,  might  thereby  obtain  control  of  his 
property,  and,  if  they  did  so,  they  would  then  turn  him  into 
the  streets  penniless ;  and  at  the  times  last  above  mentioned 
said  deceased  was  laboring  under  the  delusion  that  these 
statements  were  true;  and  the  contestants  allege  that  said 
assertions,  each  and  all  of  them,  were  false,  and  known  to 
the  residuary  legatee  to  be  such. 

(d)  While  deceased  was  living  at  the  same  apartments  as 
the  residuary  legatee,  as  above  stated,  and  for  some  time 
prior  to  the  execution  of  the  said  will  or  codicil,  and  even 
subsequent  thereto,  said  residuary  legatee  was  not  willing 
that  any  of  the  contestants  should  see  the  deceased  except 


Estate  of  Tiffany.  485 

in  her  presence ;  and  on  one  occasion  she  ordered  his  said 
wife  out  of  the  said  apartments,  and  told  deceased,  in  the 
presence  and  hearing  of  his  wife,  that  he  must  choose  be- 
tween "that  woman,"  referring  to  his,  deceased's,  wife,  and 
herself. 

(e)  Prior  to  the  execution  of  the  said  will  and  the  codi- 
cil said  residuary  legatee  persuaded  deceased  to  transfer  to 
her,  without  any  consideration,  certain  of  his  real  estate  and 
certain  of  his  personal  property ;  that  she  concealed  all  these 
transfers  from  contestants,  and  at  the  times  of  the  execu- 
tion of  said  will  and  the  codicil  she  had  complete  control 
of  the  deceased's  mind. 

(/)  Said  deceased  for  several  years  prior  to  his  death  was 
in  the  habit  of  using  intoxicating  liquors  to  excess,  and  was 
easily  influenced  by  anyone  who  would  supply  him  with  such 
liquors;  and  that  said  residuary  legatee,  contrar^^  to  the  ad- 
vice and  directions  of  the  physicians  of  deceased,  prior  to, 
at  the  time  of  and  subsequent  to  the  execution  of  said  will 
and  the  codicil,  constantly  supplied  the  deceased  with  intoxi- 
cating liquors,  and  thus  obtained  such  control  over  deceased 
as  to  unduly  influence  him. 

RESPONSE   OF   PROPONENTS. 

On  November  1,  1886,  the  proponents  answering  denied 
generally  and  specifically  each  and  every  of  the  allegations 
of  the  contest. 

The  trial  of  the  issues  thus  joined  began  on  the  18th  of 
January  and  ended  on  the  3d  of  September,  1887,  occupy- 
ing from  first  to  last  ninety-two  days.  Of  course  this  period 
did  not  include  a  continuous  consumption  of  time,  for  the 
struggle  was  intermittent  in  its  character,  owing  partly  to 
conflicting  engagements  of  one  or  the  other  of  the  counsel, 
and  partly  to  the  demands  of  other  business  pressing  upon 
the  court.  The  actual  time  consumed  in  the  trial  and  the 
arguments  was  about  three  hundred  and  fifteen  hours,  or 
sixty-three  days  of  five  hours  each,  which  was  the  average 
daily  length  of  the  trial,  as  appears  from  the  two  hundred 
and  thirty-five  pages  of  the  legal-cap  notes  taken  by  the 
judge.     There  were  forty-eight  Avitnesses  examined  for  con- 


486  Coffey's  Probate  Decisions,  Vol.  1. 

testants,  fifty-three  for  proponents  and  ten  in  rebuttal,  mak- 
ing a  total  of  one  hundred  and  eleven.  The  cause  was  most 
stubbornly  contested  by  the  counsel  for  the  respective  par- 
ties, and  every  legitimate  weapon  of  forensic  warfare  was 
used  with  skill  and  dexterity  by  the  advocates  for  either  side. 
In  such  a  conflict  the  vanquished  party  can  attribute  the 
result  only  to  the  lack  of  merit  in  his  cause  or  to  the  mis- 
taken judgment  of  the  judge,  who  may  have  failed  to  weigh 
accurately  the  facts  or  to  apply  correctly  the  law.  However 
the  court  may  err,  the  counsel  have  capably  and  conscien- 
tiously discharged  their  duty. 

points  op  controversy. 

This  controversy  is  reduced  by  the  evidence  to  two  points: 

1.  Was  the  testator  of  unsound  mind  at  the  dates  of  the 
execution  of  the  instruments  propounded  as  his  will  and  codi- 
cil? 

2.  Was  he  unduly  influenced  in  the  disposition  he  made 
of  his  property  by  the  residuary  devisee  and  legatee  named 
in  the  said  instruments? 

Robert  Joyce  Tiffany  died  in  San  Francisco,  June  6,  1886, 
having  been  born  about  sixty-six  years  prior  to  that  date 
in  Albany,  New  York.  He  was  married  to  the  contestant, 
Phoebe,  in  New  York  City,  April,  1845.  He  came  to  Cali- 
fornia in  1849,  and  after  a  few  years  returned  to  New  York, 
and  came  back  in  1856.  His  wife  followed  him  in  a  few 
months,  and  thereafter  they  lived  in  domestic  harmony  in 
San  Francisco  until  he  retired  with  a  considerable  fortune 
from  the  business  of  manufacturing  and  vending  hats,  in 
which  he  engaged  on  his  second  advent  from  New  York,  in 
or  about  1856.  He  was  also  a  director  in  the  Savings  and 
Loan  Society,  a  most  important  and  flourishing  financial  in-, 
stitution,  known  popularly  as  the  Clay  Street  Savings  Bank, 
from  1863  to  1878.  Some  time  after  he  retired  from  active 
employment  in  the  hat  business  he  began  a  habit  of  unusual 
indulgence  in  liquor,  and  in  the  summer  of  1878  a  trip  was 
made  to  Europe  with  a  view  to  correcting  this  infirmity,  and 
by  a  temporary  separation  from  unfavorable  influences  and 
associations  to  restore  him  to  his  former  temperate  habits. 


Estate  of   Tiffany.  487 

But  the  result  was  not  the  reform  anticipated  or  hoped  for, 
for  upon  his  return  to  San  Francisco,  in  the  fall  of  1878, 
he  resumed  his  habits  of  drinking,  indulging  at  times  to  ex- 
cess and  for  protracted  periods.  Before  this  time,  when  it 
is  alleged  the  radical  change  occurred  in  his  character,  and 
while  he  was  actively  engaged  in  affairs  which  demanded 
regularity  and  punctuality  in  performance,  the  evidence 
shows  that  he  was  a  careful  and  continuously  energetic  man 
of  business  and  successful  in  his  pursuit ;  he  was  very  neat 
and  precise  in  dress,  courtly  and  gallant  in  address,  a  model 
of  deportment,  and  a  man  of  reasonable  judgment  and  due 
discretion  in  all  his  concerns.  Upon  these  points,  up  to  a 
certain  time,  there  is  no  divergence  of  testimony.  Prior  to 
the  present  decade  the  evidence  does  not  indicate  that  the 
mind  of  the  decedent  had  suffered  material  injury  or  had 
become  unhinged  by  abuse  of  ardent  spirits.  But  about  the 
year  1880  a  change  began  to  be  observed  by  many  persons 
among  his  acquaintances;  then  those  who  had  previously 
noted  his  neatness  of  apparel  and  circumspectness  of  conduct 
remarked  an  alteration.  About  this  time  he  became  quite  dis- 
sipated ;  he  was  seen  frequently  in  public  under  the  influence 
of  intoxicants;  he  was  often  encountered  in  shabby  habili- 
ments, and  disordered  by  drink  to  such  a  degree  that  some 
of  his  old  friends  avoided  him,  his  condition  and  conversa- 
tion making  intercourse  intolerable.  Herein  was  a  radical 
change  from  his  earlier  years,  when  he  was  one  of  the  most 
amiable  and  pleasant  gentlemen  to  be  met  with,  refined  and 
polished  in  manner  and  utterance.  Those  who  were  form- 
erly entertained  by  his  conversation  became  disgusted  at 
his  coarse  and  salacious  speech  and  accompanying  eccentric- 
ities of  conduct.  Many  instances  are  related  in  the  testi- 
mony for  contestants  which  tend  to  show  a  material  moral 
modification  of  character  in  the  testator  from  1880,  increas- 
ing in  intensity  to  the  time  of  his  last  illness.  From  the 
period  of  his  return  from  Europe,  in  the  latter  end  of  1878, 
until  his  final  separation  from  his  wife,  the  domestic  history 
was  one  of  affliction  and  trial,  caused  by  his  irregularities 
and  the  endeavors  of  his  wife  and  family  to  reclaim  him 
from  his  evil  courses  and  associations.     The  European  tour 


488  Coffey's  Probate  Decisions,  Vol.  1, 

failed  of  its  purpose,  for  upon  his  return  he  evinced  no  im- 
provement. From  that  on  the  family  lived  at  different  board- 
ing-houses; first  at  the  Chamberlain,  where  they  remained 
until  the  latter  part  of  1881 ;  this  was  at  the  corner  of  Bush 
and  Stockton  streets,  when,  upon  the  marriage  of  his  daugh- 
ter, the  family  being  broken  up  in  a  measure,  he  took  a  room 
at  Mrs.  Harding's,  on  Taylor  street,  and  his  wife  went  to 
her  daughter's  place,  and  subsequently,  at  his  request,  joined 
her  husband;  after  a  month  or  six  weeks  he  made  another 
change  to  a  Mrs.  Allen's,  on  Powell  street,  where  he  and  his 
wife  stayed  for  about  a  month ;  he  became  very  ill  there,  and 
was  taken  to  a  place  in  the  country  in  Napa  county,  where 
they  sojourned  for  about  two  months,  when,  upon  his  re- 
quest, they  returned  to  town  to  attend  to  some  business,  and 
made  their  stay  at  their  daughter's  house;  after  his  return 
he  came  in  one  day  and  told  his  family  that  he  had  taken 
rooms  at  the  corner  of  Fifth  and  Market  streets,  at  the  house 
of  Mrs.  Either;  this  was  in  September,  1881,  and  his  wife 
assenting  to  this  arrangement  accompanied  him  to  that  place. 
This  was  the  house  known  as  No.  1  Fifth  street.  Here  they 
remained  until  November  24,  1881.  After  the  first  week  at 
the  house  1  Fifth  street  he  became  quite  sick;  he  would  go 
out  and  come  home  intoxicated,  and  from  that  became  so 
very  ill  that  it  was  thought  he  would  not  recover;  it  was 
here  and  during  this  period  that  his  wife  first  met  Mrs.  Lura 
A.  Churchill,  the  residuary  legatee.  Upon  his  recovery  from 
this  fit  of  sickness,  which  lasted  several  weeks,  he  went  to 
the  house  of  his  daughter,  Mrs.  McGregor,  and  was  there 
several  months;  for  a  while  he  seemed  to  improve,  but  after 
a  few  months  he  began  again  to  drink  to  excess;  he  became 
in  his  demeanor  violent  to  the  inmates  of  the  McGregor  house- 
hold; he  would  get  up  in  the  night  and  alarm  the  members 
of  the  family;  he  would  arise  and  go  to  the  front  door  in 
his  night  clothes;  would  go  into  the  kitchen  and  hunt  for 
the  carving  knife,  declaring  his  purpose  to  kill  them  all ; 
it  was  very  difficult  to  quiet  him  on  such  occasions ;  there 
appeared  to  be  no  provocation  proceeding  from  his  family 
for  these  outbursts  at  such  times,  and  it  was  in  striking  con- 
trast to  his  former  conduct  toward  them — before  liquor  had 


Estate  of  Tiffany.  489 

made  him  its  victim  he  was  always  kind  and  loving  to  his 
wife  and  children;  after  that  he  became  the  reverse.  Many 
instances  are  recited  in  the  testimony  showing  the  growth 
and  progress  of  the  disease,  which  finally,  it  is  claimed,  un- 
balanced his  mind  to  such  an  extent  as  to  destroy  testamen- 
tary capacity.  On  one  occasion  at  the  Chamberlain  house, 
in  October,  1880,  he  entered  his  son  William's  room  at  4 
o'clock  in  the  morning  in  his  nightgown  and  got  into  the 
bed,  and  asked  if  there  was  a  pistol,  saying  that  it  was  time 
he  or  "mother"  (his  wife)  should  die;  upon  another  occa- 
sion he  went  into  the  same  son's  coalyard,  took  off  his  coat 
and  began  to  shovel  coal ;  this  was  done  without  request  or 
necessity;  again  he  told  his  son  that  he  had  engaged  a  room 
opposite  his  son's  coalyard  on  Ellis  street,  and  one  night  he 
awoke  and  wanted  to  know  where  "mother"  (Mrs.  Tiffany) 
was,  and  didn't  know  where  he  was  himself;  upon  a  visit  to 
this  son's  coalyard  he  would  give  imitations  of  celebrated 
characters,  such  as  Edwin  Booth,  the  tragedian,  and  John 
L.  Sullivan,  the  pugilist;  this  mimetic  performance  was  a 
favorite  pastime  of  his,  as  several  witnesses  testify — not  in 
itself  standing  isolated  significant,  perhaps,  but  to  be  con- 
sidered in  connection  with  other  circumstances;  this  was  in 
the  fore  part  of  1882 ;  during  this  period  he  was  frequently 
intoxicated;  he  spent  his  time  largely  around  saloons,  until 
in  October,  1882,  he  went  to  the  eastern  states,  whence  he 
returned  in  January,  1883,  in  very  bad  order;  he  was  to  all 
appearances  demoralized,  his  dress  and  person  were  untidy 
and  unclean,  his  clothing  being  in  very  bad  condition,  and 
he  complained  that  he  had  lost  his  trunk  on  the  way,  he 
didn  't  know  where ;  he  was  very  feeble,  much  emaciated,  cov- 
ered with  vermin,  and  his  apparel  so  infested  that  it  had 
to  be  burned  up ;  he  told  a  story  of  how  he  fell  on  the  ears, 
and  that  they  were  attacked  by  "cowboys,"  and  in  other  ways 
manifested  symptoms  of  mental  disturbance.  At  a  subse- 
quent time,  while  he  was  lodging  at  the  Lick  House,  he  would 
arise  at  night  and  give  his  imitations  of  his  favorite  actors, 
pugilists  and  wrestlers — his  son  William  was  with  him  at  this 
time;  one  night  William  awoke  in  the  front  room  of  the 
Ruite,  being  aroused  by  his  father's  striking  against  the  cot 


490  Coffey's  Probate  Decisions,  Vol.  1. 

whereon  the  son  was  lying;  the  father  was  standing  over 
him  with  a  cane  in  his  hand ;  the  son  asked  him  what  he  was 
doing ;  he  answered :  "  I  thought  you  were  that  damned  black- 
guard Blaney,  and  I  was  going  to  kill  you";  Blaney  was 
the  name  of  the  attorney  who  had  appeared  in  the  insanity 
proceedings.  At  another  time  he  said  to  his  son  that  this 
same  "Blaney  was  going  to  marry  mother,  and  he  would 
kill  him  and  prevent  it." 

At  table  he  would  take  a  carving  knife,  and  raising  it 
above  his  head  assume  a  tragic  attitude  and  recite:  "Is  this 
a  dagger  which  I  see  before  me?"  And  again  he  would 
pose  as  the  patriot  Tell,  the  slogger  Sullivan,  the  wrestler 
Muldoon,  and  other  men  of  mark;  these  imitations  or  exhibi- 
tions were  noticeable  for  their  incongruity  as  to  time  and 
place;  other  instances  are  related  by  witnesses  which  tend 
to  show  a  lowered  tone  as  to  decency  of  conduct  (see  Judge's 
Notes  of  Testimony,  page  25,  lines  19,  20,  21,  for  a  notable 
illustration)  ;  his  language  was  at  times  grossly  vulgar  and 
obscene;  whereas,  in  former  years  he  was  habitually  chaste 
and  clean  in  expression  and  free  from  profanity,  in  which 
latterly  he  was  wont  to  indulge  inordinately;  friends  of 
many  years'  intimate  acquaintance  were  shocked  at  the  change 
which  they  observed  in  this  respect  (see  Judge's  Notes,  page 
50,  lines  12-19 ;  also,  same  page,  lines  23,  24,  and  page  51, 
lines  1,  2,  3).  In  the  year  1882,  on  his  trip  to  the  east,  it 
was  noticed  that  his  conduct  was  peculiar ;  among  other  eccen- 
tricities, he  sat  on  the  lower  step  of  the  car  platform,  with 
his  feet  dangling  down  (Judge's  Notes,  page  59)  ;  while  in  the 
east  at  this  time  he  acted  very  strangely,  once  appropriating 
from  the  hotel  bar  a  lemon-squeezer  and  carrying  it  with 
him  to  his  room,  and  so  deporting  himself  as  to  attract 
attention  among  his  acquaintance  to  the  marked  alteration 
in  the  man  from  what  they  had  known  in  early  days  (Judge's 
Notes,  page  77).  He  made  strange  choice  of  companions; 
brought  to  the  house  of  his  daughter  a  character  known  about 
town  as  "Sconchin,"  and  presented  him  wdth  a  cane,  and 
introduced  him  to  the  family,  to  their  great  astonishment, 
who,  when  they  discovered  the  identity  of  their  uninvited 
guest,   hastily  withdrew,   leaving  host   and  guest   alone;   at 


Estate  op   Tiffany.  491 

another  time  he  introduced  to  his  friends  an  individual  known 
as  "Shorty  Simpson,"  whom  he  kissed  and  embraced  and 
denominated  ' '  his  dear  friend ' ' ;  another  person  known  as 
"the  Maori,"  a  prizefighter,  was  presented  in  like  manner; 
and  again  he  brings  up  the  rear  of  a  procession  of  the  ad- 
mirers of  a  noted  fistic  champion,  one  Charley  Mitchell,  upon 
that  person's  arrival  in  San  Francisco,  the  deceased  in  a 
buggy,  accompanied  by  a  tattered  urchin  whom  he  had  picked 
up  on  the  way  and  raised  to  a  seat  beside  him  in  his  vehicle. 
During  his  visit  to  New  York,  he  started  out  with  his  son 
Peer  one  night  to  go  to  a  place  called  "Harry  Hill's,"  a 
noted  free  and  easy  variety  show;  on  the  way  he  encoun- 
tered a  prayer-meeting  in  progress  on  the  street  and  stopped, 
and  entered  the  hall  after  the  meeting  adjourned  to  the  in- 
side; after  a  while  the  leader  of  the  meeting,  "the  Salva- 
tion Army,"  asked  persons  to  join,  and  the  deceased  stepped 
forward  and  signed  the  roll  and  asked  his  son  to  join,  which 
the  latter  declined;  the  leader  gave  the  new  recruit  a  religi- 
ous volume,  which  he  promised  to  read;  when  he  returned  to 
his  hotel  he  read  the  book  and  then  threw  it  aside,  saying  it 
was  ' '  damned  trash ' ' ;  after  this  diversion  he  resumed  his 
visits  to  Harry  Hill's  theater,  or  dancing  and  variety  hall, 
and  there  frequently  so  acted  as  to  suggest  that  his  mind  was 
not  normal.  An  incident  is  related  of  his  conduct  in  San 
Francisco,  where,  at  a  banquet  of  the  Pioneer  Society,  he 
became  intoxicated  and  cut  a  guest,  and  had  to  be  taken  home 
in  a  carriage;  he  was  frantic,  and  was  with  difificulty  sub- 
dued. Another  time,  upon  the  occasion  of  the  funeral  cere- 
monies of  General  Grant,  he  dressed  himself  in  the  regalia 
of  a  past  president  of  the  Pioneers,  and  behaved  so  boister- 
ously upon  the  public  street  that  he  had  to  be  removed  from 
the  procession.  This  was  noticed  by  many  of  his  old  pioneer 
friends  as  a  remarkable  transformation  in  character  from 
the  period  before  he  had  become  addicted  to  the  use  of  ardent 
spirits  (see  Judge's  Notes,  pages  64,  66)  ;  some  observed  him 
in  public  very  greatly  intoxicated,  his  attire  awry,  hair 
disheveled,  necktie  disarranged,  vest  loose,  unbuttoned,  and 
he  generally  demoralized ;  these  were  among  the  elements 
of  change  in  conduct  and  appearance  noted  by  some  who 


492  Coffey's  Probate  Decisions,  Vol.  1. 

had  known  him  as  a  model  in  the  opposite  direction  (Judge's 
Notes,  page  73)  ;  he  became  very  greatly  changed  in  all  respects 
(Judge's  Notes,  pages  74,  75,  76,  77).  These  are  a  few  among 
many  incidents  and  instances  adduced  in  evidence  to  show 
the  inroads  gradually  made  by  his  drinking  habits  upon  the 
deceased's  condition  and  character,  until  his  mind  was  so 
impaired  as  to  destroy  its  balance  and  render  him  an  easy 
prey  to  the  designs  of  those  who  were  intent  upon  securing 
his  property.  For  years  he  had  been  drinking  inordinately 
and  habitually;  from  the  time  he  had  retired  from  active 
employment  and  business,  he  had  devoted  himself  to  drink 
with  such  diligence  as  to  subject  himself  almost  entirely  to 
its  dominion;  and  an  important  question  in  this  case  is,  how 
far  did  this  habit  impair  his  intellect?  While  this  issue  is 
intimately  related  to,  it  is  also  separable  from  the  other  of 
the  two  issues  to  which  this  contest  is  confined,  to  wit :  undue 
influence. 

medical  evidence. 

The  testimony  of  the  physicians  for  the  contestant  is  de- 
signed to  establish  the  conclusion  that  the  deceased  was  af- 
flicted with  softening  of  the  brain,  the  result  of  long-con- 
tinued indulgence  in  intoxicants.  The  autopsy  made  June 
9,  1886,  the  death  occurring  June  6th,  showed  that  "the 
body  was  greatly  emaciated.  On  the  left  anterior  portion  of 
the  chest  four  distinct  abrasions  found.  The  tissues  cover- 
ing sacrum  were  in  a  state  of  extensive  ulceration,  evidently 
bed-sore. 

"Thoracic  cavity — Heart  in  a  state  of  fatty  degeneration. 
Muscular  walls  soft  and  flabby. 

"Lungs — Normal  in  size,  and  no  adhesions  to  costal  pleura. 
Fatty  degeneration  of  blood  vessels. 

"Abdominal  cavity — Stomach  and  bowels  empty;  evidence 
of  chronic  catarrh  of  both;  no  signs  of  ulceration  or  acute 
inflammation. 

"Liver  found  to  be  far  advanced  in  a  state  of  fatt.y  de- 
generation. 

"Kidneys — Left  kidney  atrophied  and  contracted,  the  re- 
sult of  both  general  and  circumscribed  inflammation.  Gen- 
eral inflammation,  as  the  pyramids  were  entirely  obliterated ; 


Estate  of   Tiffany.  493 

circumscribed,  as  an  abscess  was  present  upon  superior  an- 
terior surface  connected  with  pelvis  of  kidney  and  filled  with 
pus.  Large  deposits  of  fat  found  in  pelvis  of  kidney;  right 
kidney  contracted  and  in  a  state  of  fatty  degeneration ;  blad- 
der empty. 

"Cranial  cavity — Dura-mater  adherent  to  cranial  bone 
separated  with  great  difficulty ;  opaque  and  thickened, 
weight  one  ounce;  pia-mater  highly  injected,  brain  weight, 
forty-five  ounces ;  softening  of  base  of  lateral  ventricles, 
punc'tiform  injections,  softening  of  cerebellum." 

CONDITIONS  PRODUCED  BY   ALCOHOLISM. 

It  is  testified  by  two  physicians,  Dr.  James  Stanton,  the 
county  coroner,  and  Dr.  James  Murphy,  that  these  condi- 
tions were  produced  by  alcoholism,  resulting  in  softening  of 
the  brain,  and  that  this  disease  must  have  been  in  progress 
for  about  two  years.  Softening  of  the  brain  was  defined  by 
one  of  these  physicians  as  a  progressive  disease — retrograde 
progression — and  that  even  when  indulgence  in  intoxicants 
ceases  the  disease  progresses  (Judge'  Note's,  page  93).  Dr. 
Stanton  testified  that  the  condition  of  the  kidneys  "would 
indicate  that  he  was  afflicted  with  chronic  interstitial  neph- 
ritis, caused  by  alcoholism  and  sufficient  to  cause  death ;  pye- 
mia is  blood  poisoning  caused  by  absorption  of  pus  by  the 
blood;  uremia  is  blood  poisoning  caused  by  absorption  of 
urea  (a  constituent  of  urine)  by  the  blood"  (Judge's  Notes, 
page  91).  Dr.  J.  Grey  Jewell,  a  resident  physician  of  the 
Home  of  the  Inebriates,  testified  that  deceased  died  from 
softening  of  the  brain,  produced  by  extreme  chronic  alco- 
holism, and  that  the  causes  were  in  operation  for  five  years 
preceding,  and  that  in  his  judgment  deceased  was  insane 
six  or  eight  months  prior  to  his  death.  This  physician  testi- 
fied that  he  knew  the  deceased  for  four  or  five  years  before 
his  death;  deceased  had  been  in  the  Home  of  the  Inebriates 
three  times;  first,  for  one  day,  February  3,  1883;  second,  for 
one  month  from  January  21,  3884;  third,  for  one  month  from 
j\Iarch  15,  1884.  This  witness  testified  that  he  had  had 
many  cases  of  alcoholic  patients ;  that  he  had  visited  deceased 
at  1  Fifth  street;  that  deceased  appeared  to  be  utterly  sat- 


494  Coffey's  Probate  Decisions,  Vol.  1. 

urated,  thoroughly  soaked,  with  alcohol ;  that  he  warned  the 
attendant  that  she  would  be  held  responsible  if  death  ensued ; 
that  the  patient  was  dying  from  the  effects  of  the  potions 
(alcohol)   given  to  him.     Another  physician,  Dr.  Julian  Per- 
rault,  who  had  known  deceased  sixteen  or  seventeen  years, 
intimately  from   1870,   testified  that  in   1883   deceased  was 
insane  from  abuse  of  alcoholic  stimulants.     Dr.  R.  Beverly 
Cole,   who   had   known    deceased   since    1852,    testified    that 
from  his  observations  of  the  deceased's  mental  state  during 
the  last  year  of  his  life  he  was  unqualifiedly  of  the  opinion 
that  he  was  non  compos  mentis— not  of  sound  mind  (Judge's 
Notes,  page  96).     As  the  cause  of  decedent's  death,  the  only 
important  testimony  at  variance  with  what  has  been  referred 
to  was  given  by  Dr.  Washington  Ayer.     Strangely  enough, 
the  physician.  Dr.  Charles  Rowell,  who  attended  the  deceased 
in  his  last  sickness,  and  who  certified  to  the  cause  of  his 
death,  was  not  examined  as  to  the  assigned  cause,  but  was 
questioned  on  the  direct  examination  only  as  to  the  fact  and 
circumstances  of  the  execution  of  the  will,  to  which  he  was 
a  subscribing  witness.     No  question  was  put  to  him  as  to 
the  tnith  of  the  certificate  of  decedent's  death,  which  stated 
that  he  died  of  "typhoid  fever."     In  this  connection  the 
testimony  of  Dr.  Ayer  should  be  considered,  as  he  is  the 
only  physician  introduced  to  combat  the  medical  testimony 
for    contestants.     (Dr.    Sharkey    was    not    examined    as    an 
expert  to  this  point:  see  Judge's  Notes,  page  114.)     Dr.  Ayer 
is  a  doctor  of  high  degree,  forty  years'  practice,  Professor 
of  Hygiene  in  University  of  California,  and  an  author  of 
medical   treatises   and   assays,    and   a   pioneer   associate,    ac- 
quaintance and  friend  of  the  deceased,  and  well  qualified 
to  oppose  his  opinion  to  that    of    any    other    physician  as 
to  the  question  here  involved,  and  it  becomes  of  consequence, 
therefore,  to  note  whether  he  is  in  substantial  accord  or  in 
essential  conflict  with  the  medical  witnesses  for  contestants. 
Dr.  Ayer  testified  in  substance  upon  this  point :  He  was  first 
called  in  to  attend  the  deceased  professionally  on  April  20, 
1886,  and  down  to  June  7,  1886,  from  recollection,  he  should 
say  he  paid  him  about  fifteen  visits ;  the  deceased  was  suffer- 
ing from  a  deep-seated  abscess  in  the  pelvis,  in  the  left  side 


Estate  of   Tiffany.  495 

of  the  pelvis,  lumbar  muscle.  From  Dr.  Ayer's  diagnosis 
of  the  case,  that  was  the  principal  disease.  The  deceased 
was  very  much  prostrated,  in  a  state  approaching  anemia, 
assimilating  low  grades  of  typhoid,  but  could  hardly  be 
classified  as  typhoid.  The  witness  prescribed  remedies  for 
the  deceased  to  tone  up  his  system;  among  other  things,  he 
prescribed  whisky  combined  with  egg,  or  ' '  egg  nog, ' '  and  gave 
directions  that  some  stimulant  might  be  given  occasionally, 
in  the  discretion  of  the  nurse.  In  his  opinion  anemia  was 
the  cause  of  the  death  of  the  deceased ;  he  did  not  think 
the  cause  of  the  death  was  uremia ;  he  did  not  treat  deceased 
for  alcoholism,  and  found  no  evidence  of  alcoholism.  After 
having  examined  the  memorandum  of  autopsy  made  by  Dr. 
Stanton  and  Dr.  Murphy,  the  witness  said  that  the  clinical 
conditions  presented  no  such  symptoms,  and  that  these  autop- 
sical  phenomena  might  possibly  have  been  postmortem.  From 
the  minutes  of  that  autopsy  the  witness  should  say  that 
physicians  might  have  found  uremia  as  the  cause  of  death; 
another  physician  might  have  said  it  was  pyemia ;  the  ab- 
scess was  the  principal  cause  of  the  conditions  of  the  de- 
ceased's last  illness,  but  his  advanced  age  and  the  faltering 
forces  of  nature  producing  incapacity  to  resist  the  invasions 
of  disease,  also  contributed  to  the  end.  It  was  not  a  case  of 
typhoid  fever;  death  was  not  caused  by  typhoid  fever.  The 
only  professional  relation  the  witness  ever  had  with  the  de- 
ceased was  during  the  latter 's  last  illness;  he  preserved  no 
memorandum  of  his  visits,  nor  did  he  make  any  charge.  He 
had  a  friendly  consideration  for  the  deceased,  as  well  as  a 
professional  relation.  After  his  first  call  upon  the  deceased, 
he  made  the  usual  inquiries  about  his  illness,  and  after  in- 
quiry and  examination  he  prescribed  poultices — flaxseed 
meal,  and  anodynes,  sulphate  of  morphia  and  bromide  of 
ammonium — the  office  of  these  anodynes  is  to  allay  pain ;  the 
bromide  is  to  produce  sleep  without  allaying  pain.  When 
the  witness  so  prescribed  Dr.  Rowell  was  present.  In  the 
judgment  of  Dr.  Ayer,  as  a  medical  man,  the  deceased  did 
not  die  of  typhoid  fever.  The  witness  said  that  postmor- 
tem is  not  always  the  means  of  determining  the  cause  of 
death;  where  there  are  obscurities  it  is  usually  the  positive 
means  of  ascertaining  the  cause  of  death;  where  much  time 


496  Coffey's  Probate  Decisions,  Vol.  1. 

elapses,  changes  may  occur  between  the  time  of  death  and 
the  time  of  examination,  which  would  cause  decomposition  and 
disintegration,  thus  obscuring  the  cause  of  death.  Dr.  Ayer 
agreed  with  Dr.  Murphy  and  the  other  physicians  that  soften- 
ing of  the  brain  is  a  progressive  disease,  yet  thought  there 
might  be  cases  in  which  the  progress  of  the  disease  might  be 
arrested,  and  the  brain  restored  to  its  normal  condition 
(Judge's  Notes,  pages  171,  173  and  176).  Dr.  Ayer's  testi- 
mony disposes  of  the  typhoid  theory  completely,  and,  taken  as 
a  whole,  it  does  not  contradict  the  positive  testimony  of  the 
physicians  for  the  contestants,  that  the  deceased's  death  was 
caused  by  alcoholism. 

The  result  of  all  the  doctors'  evidence  is  that  the  de- 
ceased came  to  his  end  by  alcoholism,  accelerated  by  the 
conditions  described  by  Dr.  Ayer  as  the  accompaniments 
of  old  age,  lessening  the  capacity  to  resist  the  inroads  of 
many  years  of  undue  indulgence  in  intoxicants. 

From  the  time  the  decedent  left  the  regular  routine  of 
business  he  became  more  and  more  addicted  to  the  habit 
of  drink,  until  it  gradually  effected  a  change  in  his  char- 
acter and  conduct  that  was  noticed  by  all  his  old-time 
friends.  It  is  true  some  testify  that  this  was  observable 
only  in  his  periods  of  intoxication,  and  that  in  his  sober 
moments  he  was  as  sensible  as  any  other  person ;  but  in- 
toxication became  such  a  constant  quantity  with  him  as 
to  affect  his  physical  and  mental  organization  to  such  a 
degree  as  to  render  him  easily  susceptible  to  the  most  im- 
mediate influence  which  encouraged  indulgence.  The  evi- 
dence shows  that  when  in  normal  condition  the  testator's 
general  business  capacity  was  equal,  if  not  superior,  to  the 
average  of  mankind.  He  was  the  owner  of  what  may  be 
considered  large  property,  not  requiring,  perhaps  extra- 
ordinary ability,  but  yet  good  judgment,  prudence  and  dili- 
gence for  its  successful  management;  and  this  property  was 
not  only  preserved,  but  the  amount  was  augmented  by  him. 
Notwithstanding  that  it  was  thought  necessary  to  take  steps 
more  than  once  to  place  testator  in  custody  of  the  law  as 
an  incompetent,  yet  some  persons  of  fair  judgment  and  un- 
impeached  integrity  have  given  their  opinion  that  he  was 
the  same  throughout  life;  but  this  business  capacity  may  co- 


Estate  of   Tiffany.  497 

exist  with  monomania;  and  even  assuming  that  liquor  had 
not  produced  a  total  obscuration  of  the  testator's  intellect, 
yet  there  may  have  been  a  partial  eclipse  sufficient  to  avoid 
This  instrument  as  a  will :  American  Bible  Soc.  v.  Price,  3 
West.  Rep.  69.  A  monomaniac  may  make  a  valid  will,  when 
its  provisions  have  no  connection  with  the  particular  de- 
lusion, and  there  is  no  reason  to  think  such  provisions  are 
influenced  by  it;  but  when  the  delusion  relates  to  the  per- 
sons who  would  in  the  natural  and  usual  course  become  the 
objects  of  the  maker's  care,  solicitude  and  bounty,  and 
especially  upon  whom  the  law  vfould  cast  the  inheritance  of 
his  property,  the  instrument  must  be  regarded  as  invalid  to 
pass  the  estate,  because  it  does  not  express  the  will  of  a 
sound,  disposing  mind:  American  Seamen's  Friend  Soc.  v. 
Hopper,  33  N.  Y.  619,  640.  A  person  whose  mind  is  enfeebled 
by  the  drink  disease  or  other  cause  may  have  sufficient  testa- 
mentary capacity  remaining,  except  as  to  the  object  concern- 
ing which  he  is  under  delusion,  and  that  delusion  may  be  fos- 
tered by  a  beneficiary  to  the  extent  of  unduly  influencing  the 
direction  of  the  testator's  bounty;  that  is  to  say,  the  insane 
delusion  may  operate  either  against  the  natural  and  legitimate 
recipient  of  the  testator's  wealth,  or  in  favor  of  a  stranger 
exercising  undue  influence  and  encouraging  the  delusion  to 
enhance  that  influence. 

It  is  claimed  by  the  contestants  that  they  have  established 
here  that,  at  the  date  of  the  execution  of  the  instruments, 
the  mind  of  the  testator  was  so  impaired  by  habitual  in- 
temperance that  he  had  not  sufficient  capacity  to  make  any 
testamentary  disposition;  and  that,  furthermore,  he  was  the 
victim  of  an  insane  delusion,  and  from  these  causes  that  he 
was  peculiarly  liable  to  be,  and  that  he  was,  unduly  in- 
fluenced by  the  residuary  legatee  herein  to  make  and  execute 
the  instruments  here  propounded. 

EFFECT  OF  INORDINATE  USE  OP  INTOXICANTS. 

The   law   books   and  medical  treatises,   and  our  own   ob- 
servation,  confirm  the  fact  that  the   inordinate   use  of   in- 
toxicating liquors  does  incapacitate  men  from  making  wills 
It  is  known  that  it  vitiates  the  blood,  produces  softening  of 

Prob.  Dec,  Vol.   1—32 


498  Coffey's  Probate  Decisions,  Vol.  1. 

the  brain,  disorders  the  intellect,  saps  the  vital  forces,  un- 
settles the  healthy  action  of  the  body  and  mind,  and  destroys 
them  both.  Yet  not  in  every  case  of  the  use  of  liquors  do 
these  results  follow.  Some  men  live  on  from  year  to  year, 
drinking  deeply,  attending  to  their  own  affairs,  and  occa- 
sionally reach  a  ripe  old  age;  others  break  soon.  There  is 
no  rule  by  which  to  determine  how  much  the  system  of  any 
one  man  can  endure.  One  man  may  be  perceptibly  affected 
by  a  single  debauch,  while  another  may  remain  sound  in 
mind  after  many  of  them.  A  man  temporarily  overcome  by 
a  single  debauch  is,  for  the  time  being,  of  unsound  mind, 
and  has  not  testamentary  capacity;  so,  a  person  to  whom  in- 
toxication has  become  such  a  habit  that  his  intellect  is  dis- 
ordered and  he  has  lost  the  rational  control  of  his  mental 
faculties,  is  of  unsound  mind.  There  are  several  kinds  of 
drunkenness,  and  different  kinds  of  drunkards.  Balfour 
Browne,  in  his  Medical  Jurisprudence  of  Insanity,  discusses 
drunkenness  and  its  relations  in  this  wise :  "  It  is,  it  seems  to 
us,  necessary  to  distinguish  several  kinds  of  drunkenness, 
and  the  appreciation  of  the  distinctions  which  exist  between 
each  of  these  will  go  far  to  make  the  relations  of  drunkards 
to  the  law  and  to  their  fellow  citizens  easily  understood. 

"First,  there  is  the  accidental  drunkard.  Any  man  may 
get  drunk  by  accident.  Children  who  know  little  of  the 
effects  of  alcoholic  liquor  are  apt,  when  these  are  first  pre- 
sented to  them,  to  drink  to  excess,  and  it  is  only  when  the 
next  morning's  wakening  comes,  with  a  head  full  of  wonder- 
ful aches  instead  of  wonderful  dreams,  that  the  child  learns 
that  there  is  'death  in  the  pot.'  Men  may  be  led  astray  by 
the  hilarity  of  some  occasion,  by  the  persuasion  of  friends, 
by  physical  feelings  which  prompt  to  relief  by  means  of 
stimulants,  and  may  become  drunk.  It  has  been  remarked 
with  truth  that  in  a  fit  of  ordinary  drunkenness  we  have 
an  epitome  of  an  attack  of  mania.  And  it  is  to  be  remem- 
bered that  during  the  continuance  of  the  influence  of  this 
poison  the  man  is,  to  all  intents  and  purposes,  insane.  It 
is  true  that  the  attack  is  only  temporary,  but  so  are  many 
incursions  of  mental  disease;  it  is  true  that  the  cause  of  the 
aberration  is  one  which  the  ordinary  habit  of  the  system  will 
counteract  and  remove,  but  that  remark  is  equally  true  of 


Estate  of  Tiffany.  499 

many  of  the  causes  of  insanity.  Second,  we  have  regular 
drunkards;  they  get  drunk  when  it  suits  them;  they  are 
sober  all  day,  and  transact  their  business  with  sense  and  dis- 
cretion, but  they  get  drunk  regularly  at  night;  or  it  may  be 
that  the  indulgence  of  this  propensity  comes  at  rarer  inter- 
vals; still,  there  is  a  regularity  to  be  noted  in  connection 
with  these  bouts.  These  are  really  sane  drunkards.  They 
have  complete  control  over  their  passions,  but  they  volun- 
tarily throw  the  reins  on  its  neck,  they  could  resist  tempta- 
tion if  they  chose;  they  do  resist  temptation  upon  all  occa- 
sions when  indulgence  would  be  inconvenient  or  dangerous, 
but  on  other  occasions  they  do  not  care  to  resist.  Third, 
there  is  a  class  of  drinkers  who  scarcely  deserve  to  be  called 
drunkards,  but  who  must,  nevertheless  be  regarded  by  those 
who  understand  the  true  relations  of  this  indulgence  in 
liquors  to  pathology.  Sir  David  Lindsay,  in  one  of  his 
poems,  speaks  of  some  men  who  were  'ever  dying  and  never 
dead';  and  this  third  class  might  be  well  spoken  of  as  'ever 
drinking  and  never  drunk.'  But  these  men  who  soak  or 
tipple  very  frequently  come  under  the  cognizance  of  the 
medical  psychologist,  although  their  names  may  not  appear 
on  the  books  that  are  kept  at  the  police  cells.  It  is  much 
to  be  feared  that  this  class  is  on  the  increase.  Many  men 
boast  of  being  'seasoned  casks,'  meaning  thereby  that  they 
can  drink  a  great  deal  without  showing  the  symptoms  of 
intoxication ;  but  the  boast  is  vain,  for  even  these  men  can- 
not escape  the  consequences  of  their  acts,  and  the  decadence 
of  bodily  and  mental  health  is  the  too  common  result  of  their 
frequent  indulgence.  Fourth,  we  have  habitual  drunkards. 
As  we  have  seen,  in  considering  the  psychology  of  drunken- 
ness, a  single  gratification  of  the  appetite  for  stimulants  is 
followed  by  renewed  craving  for  the  same  pleasures.  The 
urgency  of  this  craving  increases,  and  as  time  goes  on  the 
measure  of  such  indulgence  becomes  more  excessive,  and  the 
interval  between  them  more  limited.  This  is  not  the  place 
to  discuss  the  large  questions  connected  with  the  doctrine 
of  the  nature  of  volition  and  the  freedom  of  the  will:  but 
no  one  can  doubt  that,  whether  the  will  is  only  a  general 
name  for  the  plus  quantity  in  ruling  motives  or  not,  that 
motives  have  a  very  great  deal  to  do  with  the  exercise  of 


500  Coffey's  Probate  Decisions,  Vol.  1. 

helping-  volition  or  controlling  power.     But  what  is  the  re- 
sult of  repeated  indulgences  upon  the  motives  of  the  man? 
The  habit  to  indulge  becomes  stronger,  the  bodily  cravings 
grow  in  strength,  and  other  motives  lose  their  weight.     In 
this  way  the  moral  sense  of  the  individual  becomes  obscured, 
the  self-respect  and  the  self-restraint  which  depend  so  much 
upon  this  moral  estimate  of  one's  worth  are  no  longer  guid- 
ing principles  of  the  life;  the  man  has  become  the  slave  of 
an  artificial  appetite,  and  is  no  longer  the  free  ruler  of  his 
own  conduct;  his  organism  rules  over  him,  and  the  rule  is 
not  that  of  a  constitutional  monarch  who  is  ruling  in  con- 
formity with  the  laws  of  health,  but  the  tyranny  of  a  despot, 
who  is  ruling  with  the  caprice  of  disease.     Here,  again,  we 
find  the  real  distinction  between  health  and  disease,  and  the 
basal  principle  of  the  legal  distinction  between  sanity  and 
insanity.     We  here  pass  from  habitual  drunkenness  to  dip- 
somania.    This    point   was   very   well   brought    out   by   Dr. 
Crichton  Browne  in  his  evidence  before  a  House  of  Commons 
Committee;  the  essential  distinction,  he  said,  appears  to  be 
that  in  habitual  drunkenness  the  indulgence  of  the  propen- 
sity is  voluntary,  and  may  be  foregone,  and  in  dipsomania 
it  is  not  so The  points  of  distinction  between  dip- 
somania and  drunkenness  are  several.     I  find  that  as  a  rule 
dipsomaniacs  urge  the  internal  craving  as  an  excuse;  they 
say,  we  cannot   resist   it.     The  drunkard,   as  a  rule,  urges 
some  external  excuse  for  his  debauch ;  he  says  that  he  met  a 
friend,  or  that  it  was  his  birthday;  whereas,  with  the  dip- 
somaniac   it    is   the   internal   craving.     The   dipsomaniac   is 
driven  into  the  debauch  by  an  impulse;  the  drunkard  seeks 
the  intoxicating  effects.     This  seems  to  us  to  be  not  only  a 
correct   philosophical,   but   physiological   distinction,    and   it 
serves  as  a  good  description,  not  only  of  drunkenness,  but 
of  that  disease  known  as  dipsomania ' ' :  Section  353. 

Professor  Ordronaux,  in  his  "Judicial  Aspects  of  In- 
sanity" (page  382),  treating  of  habitual  drunkenness,  re- 
marks: "Another  point  deserving  consideration  is  the  fact 
that  in  habitual  drunkards  the  sudden  abstraction  of  the 
accustomed  stimulant,  particularly  in  weakened  conditions 
of  the  body,  leaves  the  brain  within  that  degree  of  factitious 
stimulation  which  has  become,  through  habit,  a  sine  qua  non 


Estate  of   Tiffany,  501 

for  the  performance  of  any  acts  requiring  the  least  mental 
effort.  Between  the  stimulating  periods  produced  by  fresh 
cups  a  habitual  drunkard  is  in  a  state  of  depression,  or  prop- 
erly disease.  He  cannot  do  his  best  mentally,  because  there 
is  no  natural  force  to  call  upon,  and  his  mental  process  and 
his  will  are  as  flaccid  as  his  muscles.  Can  such  a  mind 
intelligently  survey  the  field  of  varied  property — of  duty  to 
others  and  to  society,  and,  more  difficult  still,  can  it,  after 
long  imbrutement,  respond  to  the  dictates  of  natural  affec- 
tion toward  either  offspring,  or  kindred,  or  relatives,  or 
resist  the  artful  trammels  of  the  designing  and  dishonest 
seducer  who  plays  upon  its  weakness  in  order  to  lead  it 
astray"?  Surely  no  occasion  ever  comes  when  the  work  of 
deception  can  be  so  successfully  accomplished  under  the 
mask  of  friendship  and  sympathy,  as  when  the  mind  of  an 
habitual  drunkard  is  worked  upon  in  its  waning  moments 
upon  earth  by  a  cunning  and  interested  party." 

It  is  claimed  by  contestants  that  they  have  established  the 
substance  of  the  issue  involving  insane  delusion  and  undue 
influence,  and  that  this  was  an  occasion  when  the  work  of 
deception  was  successfully  accomplished  under  the  mask  of 
friendship  and  sympathy  by  a  cunning  and  interested  party 
(the  residuary  legatee),  who  wrought  upon  the  mind  of  an 
habitual  drunkard  (the  testator)  in  its  waning  moments  upon 
earth. 

It  has  been  said  that  the  law  indicates  as  two  distinct 
grounds  of  opposition,  unsoundness  of  mind  and  undue  in- 
fluence ;  and  that  while,  when  advanced  in  the  same  case,  the 
consideration  of  each  of  them  may  overlap  the  other,  yet  as 
legal  propositions  they  are  to  be  kept  distinct  and  apart. 
Considering  the  two  issues  together,  it  must  be  noted  that, 
although  mere  weakness  of  intellect  does  not  prove  undue 
influence,  yet  it  may  be  that,  in  such  feeble  state,  with  the 
mind  w^eakened  by  sickness,  dissipation  or  age,  the  testator 
more  readily  and  easily  becomes  the  victim  of  the  improper 
influences  of  unprincipled  and  designing  pei-sons  who  see  fit 
to  practice  upon  him :  Reynolds  v.  Root,  62  Barb.  250.  It 
is  claimed  that  the  residuary  legatee  induced  the  deceased  to 
separate  from  his  wife  and  children,  and  to  occupy  the  same 
apartments   occupied    by   her   at   the   lodging-house   on    the 


502  Coffey's  Probate  Decisions,  Vol.  1. 

corner  of  Fifth  and  Market  streets,  the  house  known  as  No. 
1  Fifth  street,  and  thereafter  prevailed  upon  the  deceased 
to  continue  such  separation  and  occupation  of  said  apart- 
ments with  her,  and  that  he  was  so  situated  at  the  times  of 
the  execution  of  the  papers  propounded,  November-Decem- 
ber, 1885.  We  first  find  deceased  at  this  house,  as  related  in 
his  wife's  testimony,  in  September,  1881,  after  he  came 
from  his  sojourn  in  the  country  place  of  Mr.  Strand,  in 
Napa  county;  after  he  and  his  wife  returned  to  town  he 
came  to  his  daughter's  house  one  day  and  said  he  had  hired 
a  room  at  the  corner  of  Fifth  and  Market  streets- — 1  Fifth 
street— the  house  kept  by  Mrs.  Either,  and  thither  the  wife 
went  a  day  or  two  after  he  had  taken  the  room.  For  the 
first  week  deceased  behaved  very  well  and  was  quiet;  then 
he  became  sick  and  was  very  ill;  his  illness  was  caused  by 
liquor;  he  would  go  out  and  return  intoxicated,  and  from 
that  became  so  ill  that  his  life  was  despaired  of.  During 
this  time  he  was  attended  by  Dr.  Perrault,  and  it  was  there 
and  then  that  his  wife  first  met  the  residuary  legatee — Mrs. 
Churchill — who  was,  it  appears,  in  a  manner  managing  the 
house,  and  with  whom,  the  wife  testifies,  she  had  an  inter- 
view upon  one  occasion  in  reference  to  the  deceased,  who  at 
the  time  had  been  ill  for  three  or  four  weeks.  The  wife 
testifies  that  she  was  in  the  kitchen  making  some  beef  tea 
for  her  husband  when  Mrs.  Churchill  came  in  and  said  to 
her:  "You  are  a  foolish  woman  to  worry  yourself  and  your 
children  over  your  husband  in  this  manner.  I  had  a 
drunken  husband  once;  I  sent  him  home  to  his  children;  he 
soon  died.  You  will  only  get  curses,  and  he  will  die  in  the 
gutter.  If  I  had  him  to  deal  with  I  w^ould  set  a  barrel  of 
rotgut  beside  his  bed,  and  let  him  drink  himself  to  death." 

After  these  remarks  the  wife  said  she  wanted  nothing 
more  to  say  to  her,  and  that  she  (the  wife)  was  there  for 
the  purpose  of  taking  care  of  her  husband,  and  that  she 
would  do  it  to  the  best  of  her  ability.  The  wife  further 
testified  that  during  this  period  Mrs.  Churchill  objected  to 
going  into  the  room  where  the  deceased  was  lying — it  being 
part  of  her  household  duty  to  attend  to  the  lodgers'  apart- 
ments— saying  she  was  afraid  to  enter  the  room,  as  the 
deceased  was  crazy;  she  would  hand  the  linen  to  the  wife, 


Estate  op   Tiffany.  503 

who  told  her  that  she  would  take  care  of  the  room  herself. 
At  this  time  there  was  another  person  than  Mrs.  Churchill 
employed  in  the  house  in  a  domestic  capacity,  one  Mrs.  Katie 
Donnelly,  who,  it  is  testified,  was  present  at  the  kitchen  in- 
terview. On  November  24,  1881,  husband  and  wife  left  this 
place  and  went  to  the  home  of  their  daughter,  on  Mason 
street.  This  ended  the  first  sojourn  of  deceased  at  No.  1 
Fifth  street.  They  went  to  Mason  street  and  continued 
there  to  reside  until  October,  1882.  Two  or  three  months 
after  going  to  the  daughter's,  deceased  left  home  one  day 
and  did  not  return,  and  after  a  hunt  for  him  his  wife  found 
him  at  1  Fifth  street,  where  he  was  ill;  she  nursed  him,  and 
at  his  request  they  went  back  after  two  or  three  days  to 
their  daughter's.  Mrs.  Lura  Churchill  was  at  the  house,  1 
Fifth  street,  during  this  time ;  she  was,  according  to  her  own 
testimony,  the  housekeeper  at  1  Fifth  street  in  1881,  and 
remained  as  such  until  January,  1883,  when  she  left,  and 
returned  in  May,  1884,  when  she  became  housekeeper  again, 
and  so  acted  until  September  1,  1885,  when  the  house 
changed  proprietors ;  after  which  date  she  resided  there 
until  June  16,  1886,  but  had  no  position  there  during  this 
period.  During  the  times  that  deceased  remained  at  this 
place  this  lady  had  opportunities  for  cultivating  his  ac- 
quaintance, which,  it  is  claimed,  she  improved  with  a  view 
to  obtaining  mastery  over  his  mind,  in  order  to  secure  for 
herself  a  large  portion  of  his  property.  During  the  first 
stay  of  deceased  at  1  Fifth  street  she  professed  a  great  aver- 
sion to  coming  in  contact  with  him  or  entering  his  room,  al- 
though it  was  within  the  scope  of  her  duty  to  do  so,  in 
managing  the  house  and  looking  after  the  rooms;  but  upon 
the  occasions  subsequently  that  he  visited  and  lodged  at  the 
house  this  aversion  was  apparently  changed  into  a  friendly 
concern  for  him,  and  to  so  great  an  extent  that  she  sur- 
rendered  her  own  apartment  to  his  use,  although  she  denies 
that  she  ever  shared  it  with  him  meretriciously  (Judge's 
Notes,  page  184).  She  explains  how  he  happened  to  occupy 
her  room  in  the  first  place,  that  he  had  come  in  from  the 
street  to  see  Mrs.  Either,  and  he  was  taken  with  a  conges- 
tive chill;  Mrs.  Either  was  not  in  the  house  at  the  time;  he 
was  taken  very  suddenly,  and  so  Mrs.  Churchill  allowed  him 


504  Coffey's  Pkobate  Decisions,  Vol.  1. 

to  occupy  her  apartment,  room  No.  2,  while  she  occupied 
room  No.  19,  with  Miss  Baty,  who,  it  seems,  was  for  a  time 
engaged  in  a  capacity  similar  to  that  of  Mrs.  Churchill 
(Judge's  Notes,  page  184).  Miss  Baty  testifies  that  the  de- 
ceased came  frequently,  from  March,  1884,  to  the  house  1 
Fifth  street;  that  he  was  out  and  in  nearly  every  day;  that 
he  called  to  see  Mrs.  Bither,  for  whom  she  was  then  acting 
as  housekeeper.  She  says  that  the  deceased  was  ill  there 
several  times,  very  ill ;  the  first  time,  according  to  her  knowl- 
edge, was  in  the  fall  of  1885,  for  a  period  of  two  or  three 
weeks.  At  that  time  Dr.  Beverly  Cole  was  called,  and  came 
twice;  subsequently  the  deceased  had  a  very  serious  attack  of 
sickness,  in  1885,  when  Dr.  Charles  Rowell  was  called.  Mrs. 
Churchill  nursed  and  attended  him  at  his  request,  and  IMiss 
Baty  says  that  she  assisted  her  and  did  a  great  deal  for  him ; 
she  saw  him  all  the  time  in  1885  and  1886,  when  he  was  sick, 
and  conversed  with  him  every  day.  In  1885,  at  the  time  of 
the  first  attack,  deceased  occupied  room  2,  and  at  the  time 
of  his  last  illness  he  occupied  room  4,  when,  as  Mrs.  Chur- 
chill and  Miss  Baty  testify,  they  occupied  together  room  19. 
This  was  Miss  Baty's  room,  but  upon  Mrs.  Churchill  yield- 
ing her  own  apartment  to  the  deceased,  under  the  circum- 
stances narrated,  she  accepted  a  share  of  the  room  of  Miss 
Baty,  who  states  that  Mrs.  Churchill  never  occupied  the  same 
room  with  the  deceased,  except  when  he  was  very  ill  and 
she  had  to  take  care  of  him  at  night,  but  she  never  occupied 
the  same  bed  with  him.  This  lady  never  saw  anything  im- 
proper between  them,  although  she  claims  that  she  would 
have  observed  it  if  anything  of  the  kind  had  occurred,  but 
that  Mrs.  Churchill  was  nothing  more  than  a  nurse  taking- 
care  of  a  sick  man  (Judge's  Notes,  page  178).  It  is  claimed 
on  the  part  of  proponents  that,  thus  situated,  Mrs.  Churchill 
did  but  an  act  of  kindness  for  the  deceased  when  he  was 
sick  and  needed  nursing,  and  that  there  is  not  an  atom  of 
evidence  that  there  was  the  least  taint  upon  the  morality  of 
her  relations  to  or  with  him,  and  that,  so  far  as  the  record 
shows,  she  is  perfectly  pure,  and  that  there  is  not  a  particle 
of  proof  that  she  ever  used  any  influence  upon  the  testator 
at  any  time,  and  most  certainly  not  at  the  time  of  the  mak- 
ing of  the  will  and  codicil,  to  keep  him  separate  from  his 


Estate  of   Tiffany.  505 

wife  and  family,  or  to  exclude  them  from  his  presence  or 
to  divert  the  disposition  of  his  property;  and  that  the  evi- 
dence shows  that  he  was  kindly  cared  for  and  nursed  at  No. 
1  Fifth  street  when  he  was  deserted  and  abandoned  by  his 
own  wife  and  family,  and  that  the  residuary  legatee  urged 
his  return  home  and  always  spoke  kindly  of  his  family,  striv- 
ing to  reconcile  him  to  them,  but  that  he  would  not  go  to 
those  who  had  thrust  him  out,  and  that  therefore  he  was 
harbored  in  the  house  of  Mrs.  Either,  who  had  a  sisterly 
fondness  for  him,  and  who  felt  it  to  be  her  duty  to  receive 
him  and  accord  him  attention  when  he  was  ailing,  and  that 
it  was  in  consonance  with  Mrs.  Either 's  desire  that  Mrs. 
Churchill  devoted  herself  to  nursing  the  deceased  when  he 
was  ill.  On  the  other  hand,  it  is  contended  by  the  contes- 
tants that  the  evidence  shows  that  the  residuary  legatee  and 
the  deceased  sustained  other  than  lawful  mutual  relations; 
that  it  was  a  case  of  man  and  mistress  rather  than  of  pa- 
tient and  nurse,  and  that  all  the  circumstances  of  the  con- 
duct of  the  residuary  legatee  make  irresistible  the  inference  of 
undue  influence  and  sustain  the  charge  that  she  used  her 
proximity  and  position  toward  him  to  foster  and  fasten  in- 
sane delusions  in  his  mind  with  reference  to  his  wife  and 
family,  and  that  of  this  influence  and  these  delusions  the 
will  was  the  ofl'spring.  If  this  contention  be  borne  out  by 
the  evidence,  much  of  the  argument  of  the  proponents  as  to 
the  character  and  extent  of  importunity  that  will  fall  short 
of  undue  influence  goes  for  naught,  because  there  is  a  dis- 
tinction between  the  influence  of  a  lawful  relation  and  the 
influence  of  an  unlawful  relation. 

The  will  of  a  man  who  has  testamentary  capacity  cannot 
be  avoided  because  it  is  unaccountably  contrary  to  the  com- 
mon sense  of  the  country.  His  will,  if  not  contrary  to  law, 
stands  for  the  law  of  descent  of  his  property,  whether  his 
reasons  for  it  be  good  or  bad,  if  indeed  they  be  his  own,  unin- 
fluenced by  an  unlawful  influence  from  others.  Lawful 
influence,  such  as  that  arising  from  legitimate  family  and 
social  relations,  must  be  allowed  to  produce  its  natural  re- 
sults, even  in  influencing  last  wills.  However  great  the  in- 
fluence thus  generated  may  be,  it  has  no  taint  of  unlawful- 
ness in  it,  and  there  can  be  no  presumption  of  its  actual  un- 


506  Coffey's  Probatk  Decisions,  Vol.  1. 

lawful  exercise  merely  from  the  facts  that  it  is  known  to 
have  existed,  and  that  it  has  manifestly  operated  on  the 
testator's  mind  as  a  reason  for  his  testamentary  dispositions. 
Such  influences  are  naturally  very  unequal  and  naturally 
productive  of  inequalities  in  testamentary  dispositions;  and 
as  they  are  also  lawful  in  general,  and  the  law  cannot  criti- 
cise and  measure  them  so  as  to  attribute  to  them  their  proper 
effect,  no  will  can  be  condemned  because  the  existence  of 
such  an  influence  is  proved,  and  because  the  will  contains  in 
itself  proof  of  its  effect.  It  is  only  when  such  influence  is 
unduly  exerted  over  the  very  act  of  devising,  so  as  to  pre- 
vent the  will  from  being  truly  the  act  of  the  testator,  that 
the  law  condemns  it  as  a  vicious  element  of  the  testamentary 
act;  so  the  law  always  speaks  of  the  natural  influence  aris- 
ing out  of  legitimate  relations.  But  we  should  do  violence 
to  the  morality  of  the  law,  and  therefore  to  the  law  itself, 
if  we  should  apply  this  rule  to  unlawful  relations;  if  we 
should  thereby  make  them  both  equal  in  this  regard  at  least, 
which  is  contrary  to  their  very  nature.  If  the  law  always 
suspects  and  inexorably  condemns  undue  influence,  and  pre- 
sumes it  from  the  nature  of  the  transaction,  in  the  legiti- 
mate relations  of  attorney,  guardian  and  trustee,  where 
such  persons  seem  to  go  beyond  their  legitimate  functions 
and  work  for  their  own  advantage,  how  much  more  ought  it 
to  deal  sternly  with  unlawful  relations,  where  they  are,  in 
their  nature,  relations  of  influence  over  the  kind  of  act  that 
is  under  investigation?  In  their  legitimate  operation  those 
positions  of  influence  are  respected;  but,  where  apparently 
used  to  obtain  selfish  advantages,  they  are  regarded  with 
deep  suspicion;  and  it  would  be  strange  if  unlawful  rela- 
tions should  be  more  favorably  regarded. 

The  voice  of  the  law  on  this  general  subject  is  dis- 
tinct and  emphatic,  transmitted  through  many  generations 
and  embodied  in  many  Latin  maxims,  all  of  which  may  be 
summed  up  in  one  sentence:  No  one  shall  derive  any  profit 
through  the  law  by  the  influence  of  an  unlawful  action  or 
relation.  The  ordinary  influence  of  a  lawful  relation  must 
be  lawful,  even  where  it  affects  testamentary  dispositions; 
for  this  is  its  natural  tendency.  The  natural  and  ordinary 
influence  of  an  unlawful  relation  must  be  unlawful,  in  so 


Estate  of   Tiffany.  507 

far  as  it  affects  testamentary  dispositions  favorably  to  the 
unlawful  relations  and  unfavorably  to  the  lawful  heirs. 
Ordinary  influence  may  be  inferred  in  both  cases,  where  the 
nature  of  the  will  seems  to  imply  it;  but  in  the  former  it 
is  right,  because  the  influence  is  lawful;  and  in  the  latter 
it  may  be  condemned,  together  with  its  effects,  because  the 
relation  is  unlawful.  There  can  be  no  doubt  that  a  long- 
cmtinued  relation  of  meretricious  intercourse  is  a  relation 
of  great  mutual  influence  of  each  over  the  mind  and  person 
and  property  of  the  other.  History  abounds  with  proofs  of 
it,  and  it  requires  no  very  long  life  or  very  close  observa- 
tion of  persons  around  us  in  order  to  reveal  the  fact.  If 
there  was  such  a  relation  between  the  testator  and  the  resid- 
uary legatee  at  the  time  of  the  making  of  the  will,  it  would 
render  inapplicable  the  cases  cited  for  proponents,  and  go 
far  to  establish  the  case  of  contestants:  Dean  et  ux.  v.  Neg- 
ley  et  al.,  41  Pa.  316,  80  Am.  Dec.  620. 

A  charge  that  the  parties  sustained  toward  each  other 
illicit  relations  ought  not,  as  was  said  in  Wallace  v.  Harris, 
32  Mich.  393,  to  be  lightly  hazarded,  and  when  once  made 
it  should  be  substantiated  by  very  cogent  evidence;  unless 
sustained  by  clear  and  satisfactory  proof,  it  should  be  dis- 
missed. There  can  be  no  doubt  that  it  would  be  pertinent 
to  show  the  existence  of  such  relation  as  a  fact  to  prove  the 
prevalence  of  undue  influence.  But  the  proof  may  fall 
short  of  establishing  meretricious  intercourse,  and  yet  show 
anomalous  conduct  between  the  parties  as  to  justify  the  in- 
ference that,  if  they  were  not  carnally  intimate,  they  were 
upon  such  close  terms  of  acquaintanceship  as  rarely  obtains 
between  nurse  and  patient.  Reputable  persons  have  testi- 
fied to  scenes  and  incidents  and  circumstances  that  support 
the  theory  of  unlawful  relations,  and  while  this  is  denied 
and  disputed  by  the  witnesses  for  the  proponents,  yet  it  is 
clear  upon  the  whole  record  that  there  was  on  the  part  of 
deceased  a  fatuous  fondness  for  the  residuary  legatee  and 
a  simulated  reciprocation,  which  strongly  tend  to  establish 
contestants'  charge  that  she  was.  during  the  long  period  of 
his  ultimate  illness,  as  well  as  for  some  time  prior  thereto, 
something  nearer  and  dearer  far  than  a  mere  nurse  and  at- 
tendant.    The  residuary  legatee   is  a  woman  of  masculine 


508  Coffey  ^s  Probate  Decisions,  Vol.  1. 

vigor  of  understanding,  of  a  native  shrewdness  of  character 
and  enriched  by  an  extensive  experience  in  worldly  affairs, 
and  it  is  by  no  means  inconceivable  that  she  exercised  a  po- 
tent influence  over  the  deceased,  and  that  she  practiced  for 
her  own  profit  upon  the  weak  mind  of  this  old  man,  de- 
mented by  drink  and  made  incapable  by  his  condition  of 
overcoming  the  effect  of  her  crafty  designs  and  artificial 
allurements;  and  that  this  influence  covered  an  extended 
period  before  and  after  and  including  the  time,  and  reaching 
to  the  act  of  making  the  will  and  codicil ;  and,  if  this  in- 
fluence is  shown  to  have  once  existed,  by  whatsoever  means 
produced  or  acquired — whenever  the  mind  of  one  person  is 
reduced  to  a  state  of  vassalage  to  that  of  another,  and  a  gift 
is  shown  to  have  been  made  by  the  weaker  party  to  the 
stronger — there  the  burden  of  proof  will  be  shifted,  the  gift 
will  become  presumptively  void,  and  the  onus  of  upholding 
its  fairness  and  validity  will  rest  upon  the  shoulders  of  the 
recipient  of  the  gift.  This  rule  is  firmly  established  in  re- 
gard to  gifts  made  by  deed,  and  the  same  principle  should 
hold  in  regard  to  wills,  and  so  courts  have  declared:  Gay  v. 
Gillilan,  92  Mo.  250,  1  Am.  St.  Rep.  712,  5  S.  W.  11. 

In  connection  with  the  issue  of  undue  influence  must  now 
be  noticed  the  insane  delusion  imputed  to  deceased,  and,  as 
thereto  related,  the  insanity  proceedings  taken  against  him. 
It  is  said  by  counsel  for  proponents  that  there  was  no  de- 
lusion whatever  in  the  mind  of  deceased;  that  so  far  as  his 
testamentary  disposition  adverse  to  his  wife  and  family  was 
concerned,  it  was  based  upon  fact  and  not  upon  fancy;  and 
that  his  declaration  that  he  made  no  provision  in  his  will 
for  his  wife  or  for  his  children,  for  the  reason  that  the  con- 
duct of  his  wife  and  children  toward  him  since  the  time  of 
the  deed  of  separation  (March  30,  1881)  did  not  commend 
them,  nor  either  of  them,  to  his  consideration,  was  founded 
upon  the  truth.  What  was  this  conduct?  What  had  they 
done  to  alienate  them  from  that  consideration  which  this 
language  implies  would  have  been  accorded  if  the  conduct 
of  the  one  had  not  been  un wifely,  and  of  the  others  unfilial? 
Was  there  any  foundation  for  this  disherison,  or  was  it  the 
product  of  delusion  sedulously  nurtured  by  the  residuary 
legatee,  whom  he  describes  as  having  been  to  him  in  all  his 


Estate  of   Tiffany.  509 

sickness  "a  true  and  tender  friend  and  nurse"?  The  coun- 
sel for  proponents  declares  that  the  testator  was  moved  to 
this  declaration  because  a  great  and  unpardonable  wrong 
had  been  done  him  by  his  family ;  that  his  spouse  had  acted 
as  an  unloving  wife,  and  his  sons  and  daughters  as  ungrate- 
ful children ;  that  they  were  constantly  harassing  him ;  that 
he  was  laboring  under  no  delusion;  they  were  endeavoring 
to  incarcerate  him  as  a  lunatic,  and  that  the  language  of  the 
will  shows  that  the  testator  fully  understood  the  situation, 
and  had  good  reasons  for  what  he  did.  In  the  same  con- 
nection counsel  for  contestants  asks  the  court  to  compare  the 
will  with  the  complaint  in  the  divorce  case  between  the  de- 
ceased and  his  wife,  and  claims  that  they  are  both  the  pro- 
duct of  the  same  mind;  this  is  the  document  published  as  an 
advertisement  in  the  "Evening  Post"  newspaper  of  Sep- 
tember 13,  1884,  and  for  the  purposes  of  reference  is  ap- 
pended, as  printed,  to  this  opinion.  This  document  counsel 
for  contestants  denounces  as  the  emanation  of  the  brain  of 
Brumagim,  one  of  the  proponents,  and  it  is  urged  that  the 
authorship  is  a  fact  and  circumstance  in  this  case  that  goes 
to  demonstrate  that  this  controversy  is  the  result  of  a  vile 
conspiracy  concocted  by  the  said  Brumagim,  who  has  not 
appeared  on  the  witness-stand  because,  it  is  argued  by  coun- 
sel for  contestants,  he  did  not  dare  to  come  in  where  his 
testimony  would  expose  his  own  infamy  in  connection  with 
this  case.  It  is  claimed  that  this  is  a  most  pregnant  cir- 
cumstance against  proponents.  Mr.  Brumagim  seems  to  have 
been  attorney  of  record  for  the  deceased  in  the  divorce  case, 
and  is  one  of  the  executors  here,  and  his  counsel  say  that 
there  is  no  justification  for  the  assault  upon  him,  forasmuch 
as  he  has  done  nothing  in  the  matter  except  what  was  de- 
volved upon  him  as  duty. 

The  composition  of  this  complaint,  so  far  as  its  pecu- 
liar phraseology  goes,  may  be  attributed  to  the  attorney  who 
signed  it;  while  the  publication  in  the  periodical  and  its 
circulation  broadcast  may  have  been  solely  the  act  of  the 
plaintiff,  without  being  aided  and  abetted  l)y  his  attorney 
in  so  unusual  a  mode  of  advertising  a  client's  domestic  his- 
tory and  maritfil  miseries.  This  complaint  purports  to  con- 
tain a  recital  of  the  ultimate  facts  constituting  the  cruelty 


510  Coffey's  Probate  Decisions,  Vol.  1. 

which  was  the  cause  of  action,  and  begins  by  charging  the 
wife  defendant  with  endeavoring,  by  false  statements  in  her 
petition,  filed  in  March,  1881,  to  have  her  husband  adjudged 
insane  and  incompetent,  thereby  to  injure  him  and  get  pos- 
session of  his  property  and  estate;  and  that  she  only  dis- 
missed such  petition  when  he  deeded  one-half  of  his  prop- 
erty to  her  by  an  agreement,  a  copy  of  which  is  subjoined  to 
the  complaint.  The  actual  language  of  the  petition  of  March 
3,  1881,  is,  in  this  regard,  as  follows:  "That  said  Robert  J. 
Tiffany  is  of  unsound  mind  and  is  mentally  incompetent  to 
manage  his  property,  and,  as  your  petitioner  believes,  has 
been  thus  incompetent  for  more  than  six  months  last  past. 
That  he  is  and  for  a  considerable  time  past  has  been  squan- 
dering, wasting  and  mismanaging  his  estate;  that,  as  your 
petitioner  is  informed  and  believes,  he  is,  by  reason  of  his 
mental  incompetency,  frequently  taken  advantage  of  by  im- 
pecunious and  irresponsible  persons,  and  induced  to  loan 
them  money  without  any  security  for  or  reasonable  prospect 
of  repayment;  and  that  he  is  liable  at  any  time  to  make 
conveyances  of  real  estate  and  transfers  of  his  personal 
property  upon  inadequate  considerations,  or  upon  no  con- 
sideration at  all.  That  the  mental  condition  of  said  Robert 
J.  Tiffany  is  not  amending,  and,  as  your  petitioner  believes, 
is  likely  to  grow  worse  and  still  further  to  unfit  him  for  the 
management  of  his  property;  that  unless  a  guardian  be  ap- 
pointed there  is  great  and  imminent  danger  that  all  the  per- 
sonal property  of  said  estate  will  be  wasted  and  dissipated, 
and  that  the  means  of  maintenance  of  said  Robert  J.  Tiffany 
and  his  family  will  be  destroyed  or  at  least  largely  reduced. 
That  by  reason  of  his  mental  condition  the  said  Robert  J. 
Tiffany  is  violent,  imprudent  and  erratic  in  his  conduct,  and 
is  incapable  of  taking  care  of  himself,  and  is  exposed  to  in- 
jury at  his  own  hands  and  from  others. ' ' 

The  complaint  further  charges  the  wife  with  instigating 
the  insanity  inquisition  of  February,  1883,  and  the  subse- 
quent and  consequent  guardianship  proceedings  in  which  Mr. 
Eastland  was  appointed  guardian,  all  of  which  proceedings, 
it  is  alleged,  were  secretly  kept  from  him,  and  were  willfully 
and  maliciously  promoted  by  his  wife,  and  that  the  letters 
were  willfully  and  surreptitiously  obtained  for  the  sole  pur- 


Estate  of  Tiffany.  511 

pose  of  injuring  plaintiff  and  getting  possession  and  control 
of  his  property.  In  connection  with  this  accusation  by  the 
husband  against  the  wife,  it  appears  from  the  official  record 
of  insane  commitments  (volume  6,  folio  159,  Superior  Court, 
Department  10)  that  upon  the  sworn  complaint  of  one  M. 
A.  Sweet,  made  on  the  third  day  of  February,  1883,  the  de- 
ceased was  brought  before  F.  M.  Clough,  judge  of  the  su- 
perior court,  who,  after  having  heard  the  testimony  of  Dr. 
James  J.  Birge  and  Mrs.  Tiffany,  and  upon  the  certificate  of 
Drs.  L.  J.  Henry  and  I.  S.  Titus,  graduates  in  medicine,  and 
being  satisfied  that  the  said  Robert  J.  Tiffany  was  insane  and 
dangerous  to  be  at  large,  and  of  the  truth  of  the  certificate 
of  the  doctors,  which,  among  other  things,  declared  that  he 
had  been  more  or  less  affected  during  the  previous  six  years, 
ordered  him  to  be  taken  and  placed  in  an  insane  asylum  at 
Stockton,  and  charged  the  sheriff  with  the  execution  of  the 
order.  In  the  matter  of  the  letters  of  guardianship,  the  ap- 
plication for  which,  it  is  said,  was  secretly  kept  from  the 
plaintiff  and  surreptitiously  obtained,  it  appears  that  a  peti- 
tion was  filed  on  February  9,  1883,  by  MeClure  &  Dwindle,  at- 
torneys for  Phoebe  J.  Tiffany,  in  which  she  alleged,  among 
other  things:  "That  the  said  Robert  J.  Tiffany  is  insane,  by 
reason  of  which  insanity  he  is  mentally  incompetent  to  man- 
age his  property,  whereby  it  becomes  necessary  that  some  suit- 
able person  should  be  appointed  guardian  of  his  person  and 
estate;  and  it  is  the  desire  of  your  petitioner  and  of  his  said 
children  that  your  petitioner  be  appointed  guardian  of  his 
person  and  estate.  And  your  petitioner  further  shows  that 
on  the  third  day  of  February,  1883,  the  said  Robert  J.  Tif- 
fany, having  had  a  legal  examination  by  and  before  a  board 
of  physicians  duly  and  legally  constituted  to  examine  him  as 
to  his  sanity,  was  by  it  pronounced  to  be  insane,  whereupon, 
and  on  the  day  and  year  aforesaid,  he  was  by  one  of  the 
judges  of  this  court  committed  to  the  authorities  of  the  State 
Insane  Asylum  at  Stockton,  and  under  such  commitment  he 
was  conveyed  and  is  now  in  charge  of  the  authorities  of  said 
asylum  at  Stockton;  and  your  petitioner  further  shows  that 
she  is  informed  by  Dr.  Shurtleff,  the  principal  resident 
physician  at  said  asylum,  that  in  his  opinion  the  said  Robert 
J.  Tiffany  is  hopelessly  insane,  and  that  he  will  probably  never 


512  Coffey's  Probate  Decisions,  Vol.  1. 

recover  his  reason,  and  that  your  petitioner  believes  he  will 
be  unable  to  attend  this  court  on  the  hearing  of  this  petition. 
Wherefore  your  petitioner  prays  that  she,  or  some  other 
competent  person,  be  by  this  court  appointed  guardian  of 
the  person  and  estate  of  said  Robert  J.  Tiffany,  with  the 
powers  and  duties  in  such  cases  by  law  made  and  provided; 
that  a  time  and  place  be  appointed  for  the  hearing  of  this 
petition,  and  that  notice  of  the  hearing  of  the  same  be  served 
upon  the  said  Robert  J.  Tiffany  at  least  five  days  before  the 
time  that  shall  be  appointed  for  such  hearing. ' ' 

Upon  this  petition  it  appears  that  on  the  same  day  an 
order  was  made  setting  the  nineteenth  day  of  February,  1883. 
for  the  hearing  of  said  petition,  and  ordering  notice  to  be 
given  to  the  said  Robert  J.  Titt'any  of  the  time  and  place  of 
hearing,  at  least  five  days  before  the  time  appointed,  by  serv- 
ing upon  him  personally  a  copy  of  the  citation  addressed  to 
him.  In  accordance  with  this  order  it  appears  from  the  re- 
turn of  the  Sheriff  of  San  Joaquin  County  that  on  the 
twelfth  day  of  February,  1883,  he  personally  served  such 
citation  upon  said  Tiffany.  It  further  appears  that  it  was 
filed  in  this  court  upon  the  nineteenth  day  of  February,  1883, 
the  return  day  named  in  said  order,  a  paper  indorsed  "Cer- 
tificate of  Dr.  Shurtleff,"  couched  in  these  words: 

"Insane  Asylum  of  the  State  of  California, 

"Stockton,  Cal.,  February  15,  1883. 
"I  hereby  certify  that  Robert  J.  Tiffany  is  now  under  my 
care  and  treatment  for  insanity,  he  having  been  regularly 
committed  to  the  State  Insane  Asylum  at  Stockton  on  the 
3rd  instant  by  Judge  F.  M.  Clough,  of  San  Francisco;  that 
he  is  of  unsound  mind  and  physically  feeble;  and  that,  in 
my  opinion,  he  is  not  able  to  attend  Court  in  San  Francisco 
on  Monday,  the  19th  instant,  and  will  not  then  be  able,  with- 
out injury  to  his  health  generally,  and  greatly  aggravating 
his  mental  disorder. 

"G.  A.  SHURTLEFF,  M.  D., 

"Med.  Supt." 

Subsequently,  on  April  2,  1883,  an  order  was  made  which 
recited  that  "the  petition  of  Phoebe  Jane  Tiffany  for  the 
appointment  of  herself  or  some  other  person  as  the  guardian 


Estate  of  Tiffany.  513 

of  the  person  and  estate  of  the  said  Robert  J.  Tiffany  com- 
ing on  regularly  to  be  heard,  and  also  her  further  petition 
that  Joseph  G.   Eastland,   of  said  city  and  county,  be  ap- 
pointed such  guardian,  being  also  heard,  and  the  matter  sub- 
mitted for  decision,  and  it  appearing  to  the  court  and  to  the 
judge  that  the  said  Tiffany  is  an  insane  person,  and  that  a 
guardian  of  his  person  and  estate  should  be  appointed,  and 
that  the  said  Eastland  is  a  competent  and  proper  person  to 
be  appointed  such  guardian,  it  is  ordered  that  the  said  East- 
land be  and  he  is  appointed  guardian  of  the  person  and  es- 
tate of  said  Tiffany,    and    that    letters    of   guardianship    be 
issued  to  him"  upon  his  giving  the  proper  bond.     It  will 
appear  from  this  comparison  that  the  allegations  of  the  com- 
plaint are  somewhat  at  variance  with  the  probate  records 
of  the  proceedings.     The  complaint  proceeds  further  to  set 
forth  the  recovery  of  the  health  of  the  plaintiff  and  his  judi- 
cial restoration  to  capacity  upon  the  31st  of  October,  1883, 
and  the  discharge  of  the  guardian  upon  the  delivery  of  the 
property  of  his  ward  to  him.     The  complaint  goes  on  to  re- 
late the  proceedings  in  Department  No.  8,  beginning  with 
the  petition  filed  on  the  29th  of  December,  1883,  which,  it 
is  charged,  was  instigated  by  the  wife  for  reasons  similar 
to  those  which  prompted  the  preceding  proceedings  and  which 
resulted  in  a  trial  by   jury   and   a   verdict   on   the    12th   of 
March,  1884,  that  plaintiff  was  not  insane.     Then  the  com- 
plaint proceeds  to  recount  numerous  charges  of  false  rumors 
spread  abroad  by  his  wife  and  children,  cruelly  done  for  the 
purpose  of  annoying  and  injuring  him  before  the  business 
community,  and  to  cast  disgrace  upon  his  life  and  character, 
and  to  get  possession  of  his  property.     And  the  complaint 
further  charges  defendant  with  having  caused  the  plaintiff 
to  be  confined  in  the  inebriate  asylum,  and  to  be  hounding 
the  plaintiff  with  her  bitter  persecutions,  and  to  have,  by  her 
envenomed  tongue,    caused   him   great   mental   anguish   and 
suffering,  and  that  her  wicked,  cruel  treatment  toward  him, 
and  her  conduct  had  been  so  utterly  at  variance  with  the  prin- 
ciples of  common  decency  and  kindness  that  it  caused  his  life 
to  be  one  of  perpetual  social  sorrow ;  and  so  bitterly  perse- 
cuting had  been  her  conduct  and  personal  treatment  toward 
him  that  she  made  it  utterly  intolerable  for  him  to  live  with 

Prob.  Dec,  Vol.  I — 33 


514  Coffey's  Probate  Decisions,  Vol.  1. 

her  in  the  marital  relations,  and  that  her  ceaseless  aim  had 
not  been  his  social  happiness  and  their  mutual  enjoyment,  but 
one  of  bitter  persecution  and  ''general  cussedness"  in  her 
conduct  toward  him;  that  she  had  blighted  his  life  in  her 
fiendish  persecution,  so  that  it  would  be  utterly  impossible 
for  him  to  ever  have  that  relation  of  social,  moral  and  in- 
tellectual communication  with  her  that  should  exist  between 
man  and  wife.  The  summing  up  of  the  ills  visited  upon  him 
in  the  phrase  "general  cussedness"  is  a  unique  contribution 
to  the  forms  of  pleading  and  an  addition  to  the  language  of 
the  law  that  hereafter  may  aid  the  draftsman  of  divorce 
complaints. 

It  is  asserted  by  counsel  for  proponents  that  the  deceased 
never  was  actually  confined  in  an  insane  asylum,  but  after 
the  commitment  sojourned  at  a  hotel  in  Stockton;  and  it  is 
asked,  if  he  were  insane  would  that  have  been  allowed?  It 
seems  from  the  testimony  that  he  stopped  at  the  Yosemite 
House  in  Stockton  by  permission  of  the  authorities  of  the 
asylum  and  in  charge  of  a  nurse  from  that  institution,  and 
that  he  was  taken  care  of  there  by  his  wife.  The  certificate 
of  Dr.  Shurtleff,  the  medical  superintendent,  hereinabove  in- 
serted, is  of  itself  a  sufficient  statement  of  his  condition  at 
that  time.  All  of  the  proceedings  in  the  insanity  inquisi- 
tion and  the  application  for  guardianship  were  regular,  and 
did  not  show  that  the  charges  in  the  complaint  as  to  secrecy 
or  surreptitious  conduct  w^ere  true.  It  appears  rather  that 
they  were  based  upon  well-grounded  apprehensions  that  the 
conduct  of  the  deceased  was  calculated  to  impair  the  substance 
of  his  estate,  and  to  produce  injury  to  himself  and  to  those 
dependent  upon  him.  Until  he  became  a  hard  and  habitual 
drinker,  and  in  many  respects  a  sot,  his  relations  with  his 
wife  and  family  were  always  loving  and  affectionate,  and  it 
is  testified  that  nothing  ever  took  place  between  the  husband 
and  children  to  alienate  his  affections  from  them.  It  was 
after  that  time  when  the  change  in  his  habits  and  character 
became  apparent,  that  when  they  remonstrated  with  him  for 
his  behavior  and  endeavored  to  reclaim  him  from  his  debas- 
ing courses,  that  the  difficulties  occurred.  There  is  no  cred- 
ible evidence  here  that  his  wife  was  lacking  in  conjugal  af- 
fection; there  is  no  evidence  whatever  that  she  was  an  un- 


Estate  of   Tiffany.  515 

faithful  spouse,  although  there  is  testimony  that  the  mind 
of  the  testator  was  infected  with  the  delusion  that  she  was  a 
party  to  a  low  intrigue  with  a  hackman,  and  that  she  sub- 
mitted herself  to  an  embrace  with  one  of  the  witnesses  for 
the  contestants  over  the  corpse  of  her  husband  immediately 
after  his  decease  (Judge's  Notes,  page  142,  line  25  to  32; 
see  page  145,  lines  17  to  22).  The  whole  course  of  her  eon- 
duct,  as  revealed  by  the  evidence,  and  her  appearance  and 
demeanor  on  the  stand  command  credence  in  the  claim  that 
Mrs.  Phoebe  J.  Tiffany  was  a  true  wife  and  a  good  mother. 

It  may  be,  as  counsel  for  proponents  argues,  that  while 
upon  the  stand  she  was  acting  for  effect,  but  it  is  hard  to 
believe  that  this  is  true  when  we  compare  her  testimony  with 
the  record  of  her  years  of  tribulation  caused  by  her  hus- 
band's erratic  conduct  and  the  patience  with  which  she  en- 
dured the  trials  consequent  thereupon.  Her  conduct  was 
characterized  by  that  charity  which  suffers  long  and  is  kind; 
which  does  not  behave  unseemly,  and  is  not  easily  provoked; 
which  bears  and  believes,  and  hopes  and  endures  all  things 
for  the  sake  of  its  object,  which  in  this  case  was  the  reclama- 
tion of  her  erring  husband.  It  does  not  seem  probable  that 
this  woman  has  been  acting  a  part  as  a  witness  in  order  to 
delude  the  court  into  a  judgment  contrary  to  the  truth.  It 
is  scarcely  credible  that  this  wife  of  forty  years  has  become 
in  her  old  age  so  clever  an  amateur  actress  that  she  can  make 
falsehood  appear  fact  without  detection.  Notwithstanding 
the  charges  in  the  divorce  complaint,  the  court  does  not  be- 
lieve that  her  ceaseless  aim  was  to  destroy  her  husband's 
social  happiness  and  their  mutual  enjoyment,  and  that  her 
conduct  toward  him  was  characterized  by  bitter  persecutions 
and  "general  cussedness";  or  that  she  had  blighted  his  life 
in  her  fiendish  persecution ;  or  that  she  had  an  *  *  envenomed 
tongue";  or  that  her  conduct  toward  him  was  so  utterly  at 
variance  with  the  principles  of  common  decency  and  kind- 
ness that  it  caused  his  life  to  be  one  of  perpetual  social  sor- 
row. It  would  seem  rather  that,  owing  to  his  unfortunate 
infirmity,  the  contrary  of  this  statement  was  the  case.  Her 
eonduct  was  marked  by  tender  care  and  solicitude  for  her 
husband,  notwithstanding  the  charges  so  painfully  elaborated 
in  the  bill  of  complaint  advertised  in  the  "Post"  newspaper. 


516  Coffey's  Probate  Decisions,  Vol.  1. 

There  is  nothing  inconsistent  with  this  in  the  filing  of  the 
petitions  to  place  her  husband  under  restraint  on  account  of 
his  condition.  It  is  the  part  of  a  good  wife  (when  moral 
means  have  been  unavailing)  in  the  last  recourse  to  resort 
to  the  law  for  the  protection  of  the  husband  and  of  the  prop- 
erty which  is  in  danger  of  destruction  through  his  conduct. 
Her  conduct  in  withdrawing  the  first  application,  and  in  the 
negotiations  which  led  to  the  making  of  the  agreement  of 
partition  of  property  and  separation,  which  was  done  under 
advice  of  counsel,  should  not  prejudice  her  position  in  this 
controversy. 

Tiffany's  mental  condition  in  1881  was  not  so  fully  de- 
veloped as  four  years  later,  although  his  aberrations  were 
so  apparent  as  to  cause  apprehension  in  the  minds  of  those 
who  were  most  observant  of  his  conduct,  and  it  was  the 
part  of  sheer  prudence  to  place  beyond  the  reach  of  wreck 
some  portion  of  his  estate.  The  circumstances  of  the  Estate 
of  Noah,  decided  by  this  court  and  affirmed  by  the  supreme 
court  (73  Cal.  583,  2  Am.  St.  Eep.  829,  15  Pac.  287),  dif- 
fered very  materially  from  those  surrounding  this  case,  and 
cannot  be  considered  as  affecting  the  decision  of  the  issues 
here  presented.  When  the  second  application  for  letters  of 
guardianship  was  made,  the  deceased  was  in  Stockton,  at 
the  Yosemite  Hotel,  in  care  of  the  nurse  provided  by  the 
superintendent  of  the  asylum,  and  that  application  was  made 
in  accordance  with  his  request  by  his  wife,  as  she  testifies. 
Apart  from  the  official  certificate  of  the  service  of  the  cita- 
tion upon  Mr.  Tiffany,  which  is  conclusive  as  contradicting 
the  statement  that  the  proceedings  against  him  were  secretly 
and  stealthily  conducted,  his  wife  testifies  that  she  was  pres- 
ent in  their  parlor  at  the  Yosemite  House  when  the  citation 
was  served.  She  watched  him  and  cared  for  him,  and  sub- 
sequently in  the  country  at  Haywards,  and  at  Oakland  and 
elsewhere.  When  he  was  judicially  restored  to  capacity, 
November  13,  1883,  she  made  no  opposition,  and  says  that 
the  proceeding  was  taken  at  her  request,  being  in  the  line  of 
her  efforts  to  reclaim  him  by  considerate  and  indulgent  treat- 
ment. The  application  which  was  tried  before  a  jury  in  De- 
partment 8  was  not  made  at  the  request  of  the  wife,  accord- 
ing to  her  testimony,  but  by  the  desire  of  the  children ;  and, 


Estate  of  Tiffany.  517 

curiously  enough,  these  parties  mingled  amicably  every  day, 
husband  and  wife  and  children  going  to  court  together.  Not- 
withstanding the  nature  of  the  proceeding,  there  was  no  ap- 
parent acrimony  in  the  family  circle  at  that  time.  The  pro- 
ceedings were  prosecuted  and  resisted  without  any  bitterness 
of  sentiment,  and  during  the  intervals  of  recess  husband  and 
wife  and  children  discussed  the  situation  in  a  friendly  man- 
ner. A  few  days  after  the  verdict  the  wife  testifies  that  she 
saw  her  husband  at  the  Home  of  the  Inebriates,  where  he 
remained  for  about  a  month,  but  she  had  nothing  to  do  with 
his  confinement  in  that  institution  at  any  time. 

THE  FIFTH  STREET  ENVIRONMENT. 

Concerning  the  circumstances  which  environed  deceased 
at  number  1  Fifth  street,  it  is  said  on  behalf  of  proponents 
that  his  family  did  not  visit  him  while  he  was  lying  sick, 
although  they  were  not  barred  out ;  that  the  latch  was  always 
down;  that  no  obstacle  was  placed  in  the  way  of  free  com- 
munication between  him  and  his  wife  and  children;  that 
so  far  from  preventing  the  members  of  his  family  from  see- 
ing him,  or  keeping  him  from  returning  to  them,  the  resid- 
uary legatee  was  always  trying  to  induce  him  to  return, 
trying  to  reconcile  him  to  his  family,  but  he  said  that  he 
could  not  trust  them  (Judge's  Notes,  page  186)  ;  and  the 
witness  Ann  Baty,  who  appears  to  have  been  assisting  the 
residuary  legatee  in  her  attendance  upon  the  deceased  dur- 
ing his  last  illness,  testifies  that  she  never  saw  his  wife  be- 
fore that  time ;  that  she  saw  his  son  William  in  the  fall  of 
1885  in  the  house  twice;  that  on  the  first  visit  no  one  was 
in  the  room  but  the  deceased,  herself  and  the  son,  and  that 
on  the  second  visit  the  daughter  accompanied  her  brother; 
then  only  the  deceased,  the  son  and  the  daughter,  the  resid- 
uary legatee  and  the  witness  were  in  the  room;  that  the  de- 
ceased did  not  wish  to  speak  to  his  daughter,  but  Mrs. 
Churchill  said,  "Mr.  Tiffany,  your  daughter  is  here,"  and  he 
said  ' '  Emma,  since  you  have  come,  I  will  speak  to  you ;  how  is 
Cecil  [that  was  her  child,  his  little  granddaughter]  ?  I  should 
like  to  see  her."  Mrs.  McGregor  said  she  would  bring  the 
child  next  time ;  then  she  said,  ' '  Father,  why  don 't  you  come 
up  to  the  house?     We  have  a  nice  room  for  you  there."     He 


518  Coffey's  Probate  Decisions,  Vol.  1. 

said  he  would  not  trust  himself  to  them  any  more,  as  he  was 
afraid  they  would  poison  him.  This  witness  said  she  had 
heard  the  deceased  speak  of  the  treatment  of  him  by  his 
family.  She  testified  that  he  said  his  wife  had  a  very  violent 
temper,  that  at  times  she  had  "bit  and  scratched  him  in  the 
face  until  the  blood  ran  down  to  his  collar."  This  witness 
also  testified  that  the  deceased  told  her  that  his  son  Willie 
once  jumped  on  his  back  when  he  (the  son)  tried  to  throw 
him  down.  The  witness  said  that  she  had  heard  the  deceased 
repeat  "time  and  time  again"  that  his  wife  had  bitten  him 
in  the  arm,  and  he  told  her  shortly  after  he  came  to  1  Fifth 
street,  in  1884,  about  his  wife  scratching  and  biting  him. 
Miss  Baty  further  testified  that  the  physician,  Dr.  Rowell, 
told  them  not  to  leave  the  room  when  Mr.  Tiffany's  family 
came,  as  he,  the  doctor,  would  feel  responsible  on  account  of 
the  threats  made  by  them  that  they  "would  shut  his  wind 
of,"  and  also  Mrs.  Churchill's,  or  that  he  should  leave  the 
house.  It  was  in  the  fall  of  1885,  she  testified,  that  Dr. 
Rowell  told  her  about  the  threats  of  Mr.  Tiffany's  family, 
and  told  her  and  Mrs.  Churchill  not  to  leave  him  alone  with 
the  members  of  his  family  in  his  room  (Judge's  Notes,  pages 
179  to  182). 

TESTIMONY  NOT  EASILY  RECONCILABLE. 

If  this  witness  speaks  the  truth,  her  testimony  is  not  easily 
reconcilable  with  the  claim  that  the  family  had  access  to 
the  deceased  at  all  times,  and  that  they  were  always  welcome, 
because  there  was  certainly  some  restraint  imposed  by  the 
restrictions  which  were  imputed  to  the  physician,  Dr.  Rowell. 
It  does  seem  that  when  the  members  of  the  family  visited  the 
deceased  before  and  after  the  making  of  the  will,  with  the 
expectation  of  having  confidential  and  private  conversations 
with  him,  the  residuary  legatee  or  the  witness  Miss  Baty  re- 
mained in  the  room,  so  that  no  such  intercourse  took  place 
without  it  being  exposed  to  them.  It  would  appear  that  the 
wife  of  deceased  and  his  daughter  were  always  anxious, 
ready  and  willing  to  go  and  nurse  him  during  his  illness, 
and  to  reside  with  him,  or  have  him  reside  with  them,  on 
condition  that  he  would  sever  his  connection  with  the  resid- 
uary legatee,  and  of  this  he  was  fully  aware,  but  he  still 


Estate  of   Tiffany.  519 

refused  to  break  the  association  with  the  residuary  legatee. 
On  many,  if  not  on  all,  of  the  occasions  when  the  friends  of 
the  deceased  called  on  him,  the  residuary  legatee  or  the  wit- 
ness Miss  Baty  made  it  a  practice  of  remaining  in  the  room 
during  the  whole  time  of  the  visit,  and  overhearing  all  that 
passed  between  them:  41  Pa.  314,  315.  Why  didn't  his 
family  visit  him  at  1  Fifth  street?  The  contestants  respond 
to  this  question  by  citing  the  circumstances  of  his  sojourn 
at  that  house  and  the  repellant  influences  there  meeting  them. 
There  was  certainly  some  impediment  in  the  way  of  those 
who  were  supposed  to  be  connected  with  his  family  in  obtain- 
ing access  to  him.  (See  Judge's  Notes,  page  69,  testimony  of 
Alfred  M.  Learned,  who,  upon  his  first  visit,  was  refused  ad- 
mission by  Mrs.  Churchill.)  With  regard  to  the  statements 
in  the  testimony  of  Miss  Baty  credited  to  the  deceased,  there 
is  not  a  scintilla  of  evidence  supporting  such  act  of  physical 
cruelty  on  the  part  of  his  wife  or  his  relatives;  and,  if  he 
made  such  statements,  they  must  have  been  the  product  of 
an  insane  delusion  which  led  him  to  regard  as  certain  trutlis, 
and  actually  believe  in  the  existence,  on  the  part  of  his  wife 
and  of  his  relatives,  of  conduct  and  intentions  substantially 
such  as  he  imputed  to  them.  I  am  perfectly  satisfied  that 
there  was  no  foundation  in  fact  for  the  gross  imputations 
upon  his  wife  or  the  charge  against  his  relatives,  all  or  any 
of  them,  of  a  design  upon  his  life,  or  an  intention  to  do  him 
any  bodily  injury;  and  that  the  idea  of  a  conspiracy  upon 
their  part  to  injure  him  in  such  manner  was  purely  imagina- 
tive, if  it  at  all  existed.  If  a  person  persistently  believes 
supposed  facts  which  have  no  existence  except  in  his  per- 
verted imagination,  and  against  all  evidence  and  probability, 
and  conducts  himself,  however  logically,  upon  the  assump- 
tion of  their  existence,  he  is,  so  far  as  they  are  concerned, 
under  a  morbid  delusion;  and  delusion  in  that  sense  is  in- 
sanity. Such  a  person  is  essentially  mad  or  insane  on  those 
subjects,  though  on  other  subjects  he  may  reason,  act  and 
speak  like  a  sensible  man.  If  the  deceased  in  the  present 
case  was  unconsciously  laboring  under  a  delusion,  as  thus 
defined,  in  respect  to  his  wife  and  his  family  connections,  who 
would  naturally  have  been  the  objects  of  his  testamentary 
bounty,  when  he  executed  his  will  or  when  he  dictated  it  (if 


520  Coffey's  Probate  Decisions,  Vol.  1. 

he  did  dictate  it),  and  the  court  can  see  that  its  dispository 
provisions  were  or  might  have  been  caused  or  affected  by  the 
delusion,  the  instrument  is  not  his  will,  and  cannot  be  sup- 
ported as  such  in  a  court  of  justice.  The  conduct  and  de- 
signs which  he  imputed  to  his  wife  and  relations  were  such 
as,  upon  the  assumption  of  their  existence,  should  have  justly 
excluded  them  from  all  share  in  the  succession  to  his  estate : 
33  N.  Y.  624,  625. 

NOT  A  PARTICLE  OF   PROOF. 

There  is  not  a  particle  of  proof  in  this  case  that  the  wife 
of  deceased  was  ever  guilty  of  the  act  of  which  she  was 
accused  by  Mr.  Tiffany,  according  to  the  testimony  of  Miss 
Baty.  I  am  bound  to  believe  that  this  is  either  a  figment  of 
his  diseased  imagination,  or  a  fabrication  by  her.  The  wife 
testifies  that  she  went  to  this  house  No.  1  Fifth  street,  to  see 
her  husband,  with  her  son  in  law,  Mr.  McGregor.  She  went 
to  the  door  and  knocked ;  her  son  in  law  was  just  behind  her. 
Mrs.  Churchill  came  to  the  door.  When  she  saw  who  it  was 
she  pushed  it  to  in  her  face,  but  the  wife  pushed  past  and 
entered  the  room.  The  husband  was  lying  on  a  lounge  much 
too  short  for  a  man  of  his  height,  with  his  head  toward  tht. 
door.  The  wife  went  up  to  him  and  said,  "Papa,  how  are 
you,  papa?  I  heard  you  were  ill."  He  put  out  his  arms 
and  he  said,  ' '  Oh,  my  dear  mamma,  I  am  so  glad  to  see  you. ' ' 
The  wife  said,  "I  know  you  are,"  and  she  kissed  him;  he 
took  her  hand,  and  she  took  her  glove  off,  and  he  took  her 
hand  and  he  said,  "Sit  down.  I  am  so  glad  to  see  you;  I 
knew  you  would  come  to  see  your  old  papa  when  you  knew 
he  was  sick,  anywhere,  even  into  this  house,  to  this  room." 
Then  she  sat  down,  and  they  talked  of  the  loved  ones  that 
had  passed  away,  and  she  talked  to  him  about  the  dead 
and  those  that  were  remaining  and  during  this  time  Mrs. 
Churchill  got  up  twice  and  gave  him  whisky ;  the  second  time 
the  wife  said, ' '  Oh,  don 't  give  him  that. ' '  Mrs.  Churchill  took 
notice  of  the  remark,  and  sat  down  again.  Then  the  deceased 
looked  around  the  room  and  seemed  to  recognize  the  resid- 
uary legatee  and  the  wife,  and  said,  "Oh,  Mrs.  Churchill, 
this  is  mamma,  my  wife."  Mrs.  Churchill  got  up  off  her 
chair  and  said,  "There  is  no  use  of  your  introducing  the  lady 


Estate  of  Tiffany,  521 

to  me;  I  know  her  well,  and  when  she  knew  me  I  was  no 
prostitute."  The  wife  turned  and  looked  at  her.  Mrs. 
Churchill  sat  down  again,  and  presently  got  up  and  gave  him 
some  more  whisky,  and  then  took  her  seat.  The  husband  still 
held  the  wife's  hand,  and  kissed  it  occasionally.  She  went 
on  talking  to  him  about  the  family,  and  after  awhile  Mrs. 
Churchill  got  up  and  said,  "Now,  Robert,  I  will  not  stand 
this;  that  woman  cannot  come  to  my  rooms  again;  you  have 
got  to  choose  this  very  night  between  her  and  me ;  now,  right 
now;  she  shall  not  come;  and  you,  too,  McGregor,  you  shall 
not  come."  The  wife  then  said  to  her  husband,  "Will  you 
not  come  home?  This  is  no  place  for  you;  you  will  never 
get  well  here ;  I  will  go  with  you  to  any  hotel,  and  I  will  take 
rooms  in  this  house  if  you  will  let  me  take  care  of  you,  papa ; 
I  will  nurse  you  back  again  to  health,  as  I  have  so  many 
times  before."  And  the  husband  said,  "Mamma,  this  is  no 
place  for  you;  go  home  to  the  children;  I  will  be  out  in  a 
day  or  two."  He  then  kissed  her  hand,  and  the  wife  said, 
"Papa,  let  me  take  care  of  you;  come  away  from  this  place; 
I  will  take  care  of  you."  He  said,  "I  will  be  out  in  a  day 
or  two."  The  husband  took  the  wife's  hand  and  kissed  it, 
and  said,  "Mamma,  you  know  if  I  was  living  with  you  and 
my  wife  should  come  it  would  not  be  pleasant;  go  home,  I 
will  see  you  in  a  day  or  so."  The  wife  said,  "Papa,  I  am 
your  wife;  it  is  my  place  to  be  beside  you;  I  will  take  care 
of  you."  He  said,  "I  will  be  well  in  a  day  or  two;  I  will 
come  and  see  you  and  the  children."  The  wife  bade  him 
goodnight  and  said,  "Papa,  I  will  go  away."  It  was  then 
nearly  10  o'clock  at  night.  He  kissed  her,  and  she  said  to 
him,  "Papa,  shall  I  come  to  see  you?"  He  said,  "Yes,  mam- 
ma." The  wife  said,  "Do  you  want  to  see  me?"  He  said, 
"Yes,  mamma,  come  and  see  me  as  often  as  you  can;  I  will 
be  out  in  a  day  or  two,"  and  then  she  went  away.  Both 
Mrs.  Churchill  and  Miss  Baty  in  their  testimony,  who  were 
present  at  the  time,  contradict  this  statement  (Judge's  Notes, 
page  185)  ;  but  there  is  at  least  enough  in  the  whole  statement 
to  show  that  Tiffany  had  not  lost  affection  for  his  wife.  His 
daughter  Emma  visited  him  altogether  six  or  seven  times. 
When  she  would  go  there  he  would  put  his  arms  around  her 
and  kiss  her,  and  ask  how  "dear  mamma"  was  and  ask  after 


522  Coffey's  Pkobate  Decisions,  Vol.  1. 

his  daughter's  husband;  he  was  under  the  influence  of  liquor 
every  time;  the  daughter  brought  him  some  wine  jelly  once, 
but  did  not  bring  him  anything  else ;  she  last  visited  the 
house  the  day  before  Thanksgiving,  1885,  but  did  not  see 
her  father  there  that  time ;  she  saw  him  two  days  before,  and 
he  was  so  ill  he  could  not  walk;  he  was  greatly  emaciated, 
and  Mrs.  Churchill  and  Miss  Baty  were  there.  She  went 
twice  to  the  theater  with  her  father  in  the  spring  of  1886, 
the  second  time  the  20th  of  March;  she  went  with  her  child 
to  see  "Buffalo  Bill"  on  Saturday  afternoon;  she  met  her 
father  at  the  theater  door;  that  day  at  the  theater  he  took 
her  by  the  hand  and  said,  "Mrs.  Churchill  cannot  turn  me 
against  you;  I  have  made  my  will  and  provided  for  you." 

BRUMAGIM   AT   1   FIFTH   STREET. 

In  April,  1886,  was  the  first  time  she  saw  Brumagim  at 
No.  1  Fifth  street ;  Mrs.  Churchill  followed  him  out ;  he  only 
remained  a  few  minutes;  she  never  saw  her  father  alone  in 
that  place ;  she  made  a  visit  there  in  May,  1886 ;  her  father 
said  he  wanted  her  to  speak  to  Mrs.  Churchill  and  Mrs. 
Churchill  to  speak  to  her,  and  they  did  so;  Mrs.  Churchill 
said,  "Robert,  Mrs.  McGregor  is  the  only  one  of  the  family 
who  understands  this  case."  On  Sunday,  the  23d  of  May, 
1886,  the  daughter  being  on  a  visit  to  the  father,  he  turned 
to  Mrs.  Churchill  and  asked  her  to  leave  the  room,  as  he  had 
occasion  to  speak  to  his  daughter ;  she  did  not  leave  the  room, 
nor  make  answer.  When  the  daughter  visited  No.  1  Fifth 
street,  Mrs.  Churchill  and  Miss  Baty,  one  or  both,  were  al- 
ways there;  sometimes  Mr.  Brumagim  was  there,  sometimes 
a  Mr.  Pat  Lynch;  one  time  the  daughter  at  her  own  home 
heard  her  father  say  he  was  going  to  marry  Mrs.  Churchill 
at  Pioneer  Hall,  and  would  drive  the  family  there  in  a  coach 
and  four  (Judge's  Notes,  pages  9  to  13).  A  witness  Mrs. 
Catherine  Donnelly,  testifies  that  she  was  employed  at  No, 
1  Fifth  street  by  Mrs.  Bither  as  chambermaid;  that  Mrs. 
Churchill  at  that  time  was  also  a  chambermaid;  that  there 
was  a  kitchen  on  the  second  floor,  and  she  saw  the  wife  of 
deceased  there  when  Mrs.  Churchill  was  in  the  kitchen,  and 
the  wife  was  making  beef  tea.  Mrs.  Churchill  said  to  her, 
"If  she  was  his  wife  she  would  buy  him  a  barrel  of  rotgut, 


Estate  of   Tiffany.  523 

and  let  him  drink  himself  to  death;  that  he  would  go  to  the 
gutter,  anyhow."  On  one  occasion  she  testifies  that  she 
heard  the  deceased  say  to  Mrs.  Churchill,  "Don't  call  me  Mr. 
Kobert;  call  me  your  dear  Robert,"  and  kissed  her.  On 
another  occasion  she  had  conversation  with  Mrs.  Churchill 
about  the  deceased,  and  Mrs.  Churchill  had  said  that  his  wife 
had  thrown  him  out,  and  she  had  picked  him  out  of  the  gut- 
ter; and  his  wife  was  only  a  common  whore,  and  that  he  had 
caught  her  in  a  house  of  assignation  with  a  hackman.  This 
last  conversation  spoken  of  was  in  March,  1885.  Again  she 
met  her  on  Kearny  street  and  had  a  conversation  with  her, 
and  the  witness  said  to  Mrs.  Churchill,  "I  see  you  have 
bought  a  lot ;  how  did  you  get  the  money  so  quick  ? "  to  which 
inquiry  the  response  was,  "I  have  made  a  great  deal  of 
money  in  stocks,  and  have  bought  the  lot  and  paid  for  it." 
Once  again,  on  Fifth  street,  Mrs.  Churchill  said,  "I  have  had 
a  handsome  Christmas  present,  a  pair  of  blankets,  two  oil 
paintings  and  a  diamond  ring,  which  Mr.  Tiffany  gave  me." 
This  was  in  April  or  May,  1886  (Judge's  Notes,  pages  16,  and 
17).  All  of  these  statements  are  denied  by  Mrs.  Churchill 
(Judge's  Notes,  page  184).  The  deceased  went  to  room  at 
628  Sutter  sti*eet,  in  the  house  of  Mrs.  Kate  E.  Learned, 
in  December,  1884,  and  was  there  about  a  year  and  a  half; 
he  came  with  a  Mr.  Rapp ;  he  stayed  in  the  first  room  six  or 
seven  months,  then  he  took  a  small  room  for  eight  or  nine 
months ;  he  went  away  five  or  six  months  after  he  came,  and 
then  returned;  his  attorney,  Joseph  ]\I.  Wood,  paid  for  three 
or  four  months :  Mrs.  Churchill  paid  one  month,  the  rest  of 
the  time  he  paid  himself;  he  did  not  stay  there  half  the  time 
in  the  first  period  referred  to;  during  the  second  period  he 
was  absent  for  a  month  at  a  time;  Mrs.  Churchill  had  a  key 
to  his  room,  also  of  his  trunk;  Mr.  Tiffany  introduced  Mrs. 
Churchill  to  Mrs.  Learned;  he  said  that  ]\Irs.  Churchill  was 
a  dear  friend  of  his;  she  lived  at  1  Fifth  street,  and  did  the 
chamber  work  for  INIrs.  Bither;  Mrs.  Churchill  may  have  re- 
mained there  fifteen  or  twenty  minutes  at  the  time  in  his 
room ;  she  was  introduced  to  the  witness  two  or  three  months 
after  Mr.  Tiffany  first  came,  and  the  witness  saw  her  there 
afterward  during  the  first  period  of  his  stay  at  the  house; 
she  would  come  sometimes  two,  or  three,  or  four  times  a 


524  Coffey's  Probate  Decisions,  Vol.  1. 

month ;  she  would  be  accompanied  by  him,  and  remain  a  half 
hour  at  a  time,  and  he  would  go  out  with  her;  she  would 
always  be  at  his  room.  The  witness  learned  from  Mr.  Tif- 
fany that  he  went  from  her  house  to  504  Sutter  street,  to  a 
Mrs.  Meyers;  he  subsequently  returned  to  the  house  of  Mrs. 
Learned  to  see  if  he  could  get  a  room,  and  said,  "I  was  sorry 
I  left  your  house,  but  Mrs.  Churchill  desired  it,  as  she  and 
Mrs.  Meyers  were  friends,  but  now  they  have  quarreled  and 
I  now  want  to  come  back."  He  and  the  witness  had  a  con- 
versation about  Mrs.  Churchill;  he  said,  "What  is  the  rent 
of  the  front  suite  of  rooms,  and  what  will  you  board  me  and 
Mrs.  Churchill  for?  I  am  going  to  get  a  divorce,  and  am 
going  to  marry  Mrs.  Churchill."  The  witness  had  a  great 
many  conversations  with  him  upon  that  topic.  She  had  also 
a  conversation  with  Mrs.  Churchill  in  the  latter  part  of  1885. 
Mrs.  Churchill  came  to  her  house  and  said  she  wanted  his 
things.  The  witness  said  she  was  glad,  as  she  did  not  want 
him  in  her  house;  Mrs.  Churchill  said  she  had  taken  a  room 
for  him  in  O'Farrell  street,  that  his  family  had  tried  to  put 
him  in  the  insane  asylum,  that  she  would  take  care  of  him, 
that  his  family  were  willing  that  she  should  take  care  of  him, 
but  were  not  willing  to  do  anything  for  him ;  that  she  would 
show  them  she  should  take  care  of  him,  and  would  do  so  to 
spite  his  wife.  Mrs.  Churchill  took  his  trunk  and  other 
things  belonging  to  him.  The  witness  said  Mr.  Tiffany  would 
very  seldom  come  in  before  12  or  1  o'clock  at  night;  he  was 
always  intoxicated  when  he  came  in;  he  wore  ornaments  on 
his  person  during  the  second  period,  a  tooth  in  his  necktie. 
The  tooth,  he  said,  was  Mrs.  Churchill's,  a  diamond  ring, 
which  he  said  she  gave  him  as  a  present.  He  told  her  he 
gave  to  Mrs.  Churchill  all  the  money,  and  she  paid  the  bills 
and  collected  the  rents.  There  was  another  conversation  on 
that  subject,  in  which  he  said  he  had  given  her  certain  prop- 
erty, and  had  her  name  put  in  large  letters,  "Churchill 
Court."  The  witness  told  her  that  on  the  occasion  of  the 
divorce  trial  he  told  her  he  was  going  to  appeal,  and  would 
beat  them,  and  said,  "I  will  beat  them,  you  bet  your  bottom 
dollar,  and  on  the  first  of  the  month  I  will  marry  Mrs. 
Churchill."  This  was  in  August  or  September,  1885  (Judge's 
Notes,  page  31).     Another  witness,  Mrs.  Sallie  Johnson,  an 


Estate  of  Tiffany.  525 

old  friend  of  the  deceased,  saw  him  frequently  in  1885,  and 
observed  him  closely,  and  was  frequently  with  him,  and 
visited  him  in  November,  1885.  On  one  occasion  he  was  lying 
on  a  lounge  too  short  for  him,  in  the  room,  his  clothes  were 
badly  disordered  and  uncleanly.  This  was  on  November  7, 
1885.  He  was  very  glad  to  see  her;  he  wanted  to  kiss  her, 
and  said,  "I  am  very  glad  to  see  you,  good  lady,  that  you 
have  come  to  see  me."  She  said  she  was  very  sorry  to  see 
him  so  ill;  he  spoke  of  some  of  his  family  very  abusively. 
There  was  a  woman  in  the  room  to  whom  she  was  introduced 
as  Mrs.  Churchill.  The  second  time  this  witness  called  the 
deceased  was  very  ill  and  very  excitable,  and  said  to  her, 
"Do  you  see  that  on  the  mantle-piece  there  [pointing  to 
what  appeared  to  be  a  glass  of  jelly]  1  They  have  brought 
that  to  poison  me."  He  said  his  daughter  brought  it;  he 
asked  witness  to  drink  with  him,  liquor  of  some  kind,  which 
she  declined;  the  liquor  was  handed  to  him  by  Mrs.  Church- 
ill; the  deceased  got  angry  and  abusive  to  the  witness  when 
she  declined,  and  said,  "Damn  it,  cannot  you  take  a  drink 
with  an  old  friend?"  He  abused  the  members  of  his 
family,  said  they  were  going  to  rob  him  and  poison  him ;  the 
witness  communicated  to  the  daughter  the  information  of  the 
conversation  with  her  father  (Judge's  Notes,  pages  33  and 
34).  Another  witness,  Mrs.  Sarah  B.  Cooper,  an  old  ac- 
quaintance and  friend  of  the  deceased  and  his  wife,  and 
superintendent  arid  manager  of  the  kindergarten  system  of 
schools,  relates  many  peculiarities  of  the  deceased  as  a  basis 
of  her  opinion  that  he  was  insane  in  November  and  Decem- 
ber, 1885.  From  May  to  November  of  that  year  he  visited 
her  school  as  often  as  forty-eight  times;  that  she  believed 
him  to  be  unsound  of  mind  (Judge's  Notes,  pages  34  to  38). 
A  witness,  E.  H.  Neville,  a  twenty-five  years'  acquaintance 
of  the  deceased,  very  intimate  with  him  from  1878,  testifies 
to  peculiarities  indicating  a  change  in  his  character,  from 
daily  observations,  and  recites  numerous  incidents  and  in- 
stances of  his  conduct  indicating  insanity.  For  five  years  the 
deceased  occupied  a  desk  in  the  office  of  the  witness,  and  was 
in  there  every  day,  or  nearly  every  day.  Once  in  1884,  the 
deceased  showed  to  the  witness  a  human  tootli,  mounted  as 
a  pin  on  his  scarf,  which  he  told  him  came  from  the  mouth  of 


526  Coffey's  Probate  Decisions,  Vol.  1. 

Mrs.  Churchill,  whom  he  described  as  "the  loveliest  and  most 
angelic  woman  on  earth,"  and  that  he  was  going  to  marry 
her.  The  deceased  also  showed  to  the  witness  a  picture  of 
a  woman  pasted  in  his  hat,  on  which  was  written,  "From 
Lura  to  Kobert. "  The  witness  related  that  the  deceased 
brought  several  persons  to  his  office  upon  one  occasion  and 
introduced  them  to  him,  one  as  his  dear  friend  "Shorty 
Simpson,"  whom  he  kissed  and  embraced;  another  was  Her- 
bert Slade  (known  as  the  "Maori,"  a  prizefighter)  ;  also  an- 
other one,  "Sconchin"  Maloney,  and  others  of  more  or  less 
like  character.  One  time,  after  the  divorce  suit  was  brought, 
the  deceased  came  to  the  witness'  office  with  his  wife,  and 
said  it  was  the  happiest  day  of  his  life,  all  his  troubles  were 
arranged,  he  and  his  wife  were  going  to  see  his  Mission  prop- 
erty, and  they  went  out  together;  subsequently  on  the  same 
day  the  deceased  came  into  the  witness'  office  and  said  he 
was  much  pleased  that  it  was  all  arranged.  The  witness 
asked  him,  "How  about  the  divorce  suit?"  The  deceased 
said  that  was  "all  nonsense,"  he  would  not  have  brought  it, 
but  he  ' '  was  persuaded  to  do  so  by  that  Brumagim, ' '  using  an 
opprobrious  epithet.  Another  witness,  John  Mason,  an  old 
citizen  and  acquaintance  of  the  family,  testified  that  after 
the  witness  had  gone  into  business  as  a  brewer  at  the  Mis- 
sion, Twenty-ninth  and  Tiffany  avenue,  in  ]\Iarch,  1884.  he 
saw  the  deceased  as  often  as  four  times  a  week,  from  that 
time  to  his  last  sickness,  except  when  he  was  sick  and  away 
from  there;  he  had  drank  with  the  deceased  may  times, 
too  numerous  to  mention ;  sometimes  at  the  place  called 
Cody's,  on  Twenty-ninth  and  Mission  streets;  he  had  numer- 
ous conversations  with  the  deceased,  which  occurred  during 
the  progress  of  the  work  of  construction  of  the  Tiffany  block, 
when  the  witness,  at  the  instance  of  deceased,  noted  the  man- 
ner in  which  the  work  was  done.  The  witness  saw  Mrs. 
Churchill  once  at  Cody's,  and  was  introduced  to  her  by  the 
deceased,  who  came  down  to  the  brewery  and  insisted  on  the 
witness  going  to  be  introduced,  which  the  witness  did  not 
desire.  The  witness  said  to  deceased  that  he  did  not  want 
to  go;  that  the  deceased  had  no  grounds  for  separation  or 
divorce  from  his  wife ;  but  he  went,  and  in  the  back  room  ad- 
joining the  bar-room  saw  Mrs.  Churchill ;  he  was  introduced 


Estate  of  Tiffany.  527 

by  the  deceased  to  her  as  the  lady  to  whom  he  was  going  to 
be  married  as  soon  as  he  got  a  divorce ;  she  made  no  remark ; 
the  three  had  a  drink  together.  The  witness  saw  her  subse- 
quently several  times  out  there,  and  saw  the  deceased  in  the 
fall  of  1885,  sometimes  at  the  brewery  and  sometimes  at 
Cody's.  Once  the  deceased  came  out  to  the  brewery;  the 
deceased  said  that  he  was  something  of  a  pugilist  himself, 
and  took  off  his  coat  and  vest  and  rolled  up  his  shirt  sleeves 
to  show  his  muscles,  and  said  he  was  as  vigorous  as  a  man 
of  twenty-five  or  thirty  years  of  age;  that  when  John  L. 
Sullivan  came  out  he  would  have  a  set-to  with  him ;  he  could 
not  live  without  sleeping  with  a  wOman  and  Mrs.  Churchill 
"just  filled  the  bill."  The  witness  said  to  him  that  he  was 
foolish  to  talk  in  that  manner.  Subsequently,  and  in  the 
same  conversation,  the  deceased  said  he  was  going  back 
to  his  "mamma";  that  she  was  a  good  wife  to  him  and 
true,  and  he  was  going  back,  as  his  advisers  were  not  ad- 
vising him  right.  The  deceased  also  said  he  had  made  his 
will,  and  everything  was  going  to  his  two  sons,  his  "mam- 
ma," his  daughter  and  his  grandchild.  Another  witness,  D. 
B.  Jackson,  an  acquaintance  of  the  deceased  from  1843,  when 
he  worked  with  him  in  New  York  City,  after  testifying  to 
many  events  during  that  period,  says  that  in  the  fall  of  1884 
he  met  the  deceased  at  the  Bay  District  Race  Course,  ac- 
companied by  Mrs.  Churchill,  whom  the  witness  identified  in 
the  courtroom  as  the  person  to  whom  the  deceased  introduced 
him  at  the  time;  the  deceased  showed  the  witness  her  card 
photograph  in  his  hat.  Prior  to  the  introduction  the  de- 
ceased said  to  the  witness,  "I  want  to  introduce  you  to  my 
daisy";  that  was  after  the  State  Fair  in  October,  1885.  He 
often  said  to  the  witness,  of  Mrs.  Churchill,  that  "she  was 
the  dearest  creature  on  earth,  taking  the  nicest  and  best  care 
of  him."  A  few  days  before  the  deceased  was  taicen  down 
finally,  he  came  to  the  office  of  the  witness  with  his  daughter 
and  grandchild,  and  said  that  they  were  provided  for:  he  had 
made  everything  all  right. 

A  large  number  of  witnesses,  in  addition  to  those  already 
alluded  to,  relate  the  declarations  and  conversations  of  the 
deceased  on  a  great  variety  of  occasions  to  the  same  general 
purport  as  those  stated.     The  proponents  have  examined  a 


528  Coffey's  Probate  Decisions,  Vol.  1. 

large  number  of  witnesses,  many  of  whom  knew  the  deceased 
but  slightly,  although  the  period  of  their  acquaintance  was 
of  long  duration,  and  while  their  social  and  business  stand- 
ing may  be  good  their  opportunities  for  intimate  obser- 
vation were  not  sufficient  upon  which  to  predicate  a  judg- 
ment as  to  his  state  of  mind;  such  gentlemen  as  John  K. 
Orr,  with  whom  the  deceased  transacted  business  in  a  retail 
way  for  many  years,  but  whom  he  did  not  meet  socially, 
except  as  he  was  pleasant  in  intercourse  when  he  came  into 
his  store,  and  would  talk  about  his  travels  in  Europe,  and 
his  visits  to  Ireland;  and  Colonel  Wason,  whom  he  would 
meet  on  the  street  frequently  or  at  the  Pioneer  Hall;  or 
Charles  H.  Burton,  whom  he  met  casually  on  the  street;  or 
R.  T.  Van  Norden,  Solomon  Tesmore,  H.  A.  Cobb,  A.  A.  En- 
quist  and  others  of  like  good  character  who  speak  of  their 
occasional  contact  with  him.  This  class  of  witnesses  when 
they  found  him  able  to  transact  the  ordinary  affairs  of  busi- 
ness, and  saw  nothing  extravagant  or  peculiar  in  his  manner 
readily  pronounced  him  of  sane  mind.  Witnesses  of  equally 
good  character,  many  of  whom  had  enjoyed  a  long  and  inti- 
mate acquaintance  with  the  person  of  whom  they  were  called 
upon  to  speak,  testified  with  great  positiveness  to  the  contrary; 
and  while  these  witnesses  are  sought  to  be  discredited  by  the 
counsel  for  the  proponents  as  belonging  to  one  of  two  classes 
outside  of  the  family,  either  their  partisans  or  the  friends 
of  Mr.  McGregor,  yet  they  do  not  appear  to  be  otherwise 
discredited,  and  there  is  no  reason  why  the  court  should  con- 
sider their  opinions  as  of  less  value  than  those  of  others  with 
no  superior  opportunities  of  observation.  Take  the  testimony 
of  John  ]\Iason,  or  Raphael  Weill,  of  Henry  White,  Thomas 
D.  Mathewson,  Philip  A.  Roach,  E.  B.  Vreeland,  Cyrus  W. 
Carmany,  John  J.  Haley,  Amory  F.  Bell,  M.  H.  De  Young, 
A.  C.  Bradford,  Davd  Scannell,  R.  F.  Bunker,  John  Perry, 
Jr. — scarcely  any  of  these  men  can  be  said  to  be  partisans, 
and  they  all  concur  in  the  conclusion  that  in  November  and 
December,  1885,  the  deceased  was  of  unsound  mind.  I  have 
examined,  with  great  attention,  the  mass  of  evidence  in  this 
case,  but  have  found  it  impracticable  to  make  such  an  anal- 
ysis as  I  have  desired.  There  is  much  of  the  evidence  to 
which  I  have  not  alluded,  and  to  which,  on  account  of  its 


Estate  of   Tiffany.  529 

volume,  it  is  almost  impossible  to  allude  with  advantage.  I 
think  the  facts  in  evidence  warrant  the  conclusion  that  the 
deceased  was  of  unsound  mind  at  the  time  he  executed  the 
papers  offered  for  probate;  and  even  if  this  issue  were  not 
satisfactorily  established,  I  think  it  is  clear  that  he  was  act- 
ing under  undue  influence.  Upon  this  second  issue  the  evi- 
dence must  often  be  indirect  and  circumstantial.  As  it  is 
laid  down  in  the  authorities,  naturally,  persons  who  intend 
to  control  the  actions  of  another,  especially  in  the  matter  of 
the  execution  of  wills,  do  not  proclaim  that  intent.  Very 
seldom  does  it  occur  that  a  direct  act  of  influence  is  patent. 
The  existence  of  influence  must  generally  be  gathered  from 
circumstances,  such  as  whether  the  testator  had  formerly  in- 
tended a  different  disposition  of  his  property;  whether  he 
was  surrounded  by  those  having  an  object  to  accomplish,  to 
the  exclusion  of  others;  whether  he  was  of  such  weak  mind 
as  to  be  subject  to  influence;  w^hether  the  paper  offered  as 
a  will  is  such  a  paper  as  would  be  probably  urged  upon  him 
by  the  persons  surrounding  him ;  whether  they  are  benefited 
thereby  to  the  exclusion  of  formerly  intended  beneficiaries. 
Undue  influence  can  rarely  be  proved  by  direct  and  positive 
testimony.  It  may  be  inferred  from  the  nature  of  the  trans- 
action, from  the  true  state  of  the  affections  of  the  testa- 
tor, from  groundless  suspicions  against  members  of  his 
family  if  any  such  have  been  proved,  and  from  all  the  sur- 
rounding circumstances. 

The  legal  principles  which  relate  to  insanity,  insane  de- 
lusions and  undue  influence  have  been  so  frequently  laid 
down  by  this  and  other  courts,  and  are  so  familiar  as  to  ren- 
der repetition  idle.  I  do  not  deem  it  necessary  to  consider 
critically  the  evidence  of  the  witness  Swasey,  w^hose  "daily 
journal,"  or  diary,  furnished  the  basis  of  his  recollection 
of  what  occurred  during  the  last  sickness  of  the  deceased. 
I  do  not  agree  with  the  counsel  for  contestants  in  the  theory 
that  that  book  was  written  up  pending  the  contest  for  the 
use  of  the  witness,  but  ray  impression  is  that  it  was  written 
up  from  day  to  day  during  the  period  of  the  deceased's  last 
illness,  with  a  view  to  its  possible  use  in  some  dispute  aris- 
ing over  the  disposition  of  his  property,  and  that  its  oppor- 
tunity was  found  and  improved  in  this  controversy.     Coun- 

Prob.  Dec,  Vol.  1—34 


530  Coffey's  Probate  Decisions,  Vol.  1. 

sel  for  proponents  claim  that  the  evidence  of  Mr.  Pierson, 
one  of  the  executors,  and  the  gentleman  who  drafted  the  will, 
should  carry  conviction,  because  he  stands  in  his  profession 
where  the  most  ambitious  might  wish  to  attain  for  learning 
and  integrity.  Notwithstanding  Mr.  Pierson 's  character  as 
a  man  and  his  learning  as  a  lawyer,  it  is  not  impossible  that 
he  erred  in  opinion  as  to  the  soundness  of  the  mind  of  the 
person  whose  will  he  drafted,  and  that  he  was  not  fully 
aware  of  the  circumstances  that  surrounded  and  the  influences 
that  governed  the  testator. 

MR.    PIERSON 'S    EVIDENCE. 

Mr.  Pierson  testified  that  he  had  been  a  practicing  lawyer 
in  San  Francisco  for  twenty -five  years;  that  he  had  a  nod- 
ding and  speaking  acquaintance  with  Mr.  Tiffany  for  that 
length  of  time  prior  to  the  latter 's  death;  that  he  had  busi- 
ness relations  with  him;  was  employed  as  counsel  for  him  in 
the  divorce  case  in  1885 ;  that  he  had  frequent  consultations 
with  him  until  the  case  was  actually  tried,  in  August,  1885; 
some  time  after  he  was  employed  in  that  case,  the  witness  was 
engaged  in  an  action  brought  by  his  wife  against  him,  and 
had  a  consultation  with  the  deceased  once  or  twice;  also,  he 
was  consulted  in  another  case,  on  a  promissory  note  against 
him,  and  he  also  drew  his  will  on  the  15th  of  November,  and 
the  codicil  on  the  15th  of  December,  1885.  The  preliminary 
consultation  for  the  will  was  on  Sunday,  November  15,  1885 ; 
it  was  an  exceedingly  stormy  day;  it  was  11  o'clock  when 
the  witness  arrived  at  No.  1  Fifth  street  and  went  to  the 
room,  one  of  the  suite  where  the  deceased  was;  they  had  a 
cursory  conversation  about  half  an  hour  before  the  witness 
asked  the  deceased  if  he  was  about  to  make  his  will,  while 
the  witness  was  seated  by  the  fire  getting  warm  and  dry ;  the 
deceased  gave  the  witness  instructions  about  the  composition 
of  the  will;  while  he  was  giving  such  instructions  the  lady 
whom  the  witness  subsequently  knew  as  Mrs.  Churchill  came 
into  the  room;  while  the  testator  was  saying  to  the  witness, 
"Leave  the  rest  to  Mrs.  Churchill,"  she  said,  "Mr.  Tiffany, 
if  you  are  making  a  will,  don't  name  me  in  it,  as  it  will  only 
cause  me  trouble";  the  deceased  said,  "What  business  is  it 
of  yours  ?     Leave  the  room, ' '  and  she  left.     The  witness  went 


Estate  of  Tiffany.  531 

into  another  room,  wrote  it  out,  came  back,  found  there- 


in Mr.  Tiffany's  room— Dr.  Rowell,  Mr.  Anderson  and  the 
testator.  Mr.  Tiffany  was  "perfectly  sound"  in  mind;  at 
different  times  deceased  spoke  of  his  wife  and  family  hav- 
ing conspired  against  him,  put  him  in  the  Home  of  Inebriates, 
having  had  him  declared  insane  for  the  purpose  of  robbing 
him  and  getting  possession  of  his  property;  he  spoke  of  try- 
ing to  obtain  a  loan  and  being  met  at  all  points  by  members 
of  his  family,  who  interfered  with  his  purpose  by  threatening 
bankers  and  others  with  suit.  This  was  substantially  what 
he  said  to  the  witness,  who  never  saw^  the  deceased  under  the 
influence  of  liquor.  The  codicil  was  drawn  in  the  office  of 
the  witness  December  15,  1885,  at  which  time  the  mind  of 
the  testator  was  ' '  perfectly  sound " ;  it  was  so  at  all  times 
that  the  witness  had  business  relations  with  him.  The  de- 
ceased wanted  the  witness  to  have  $1,000  in  the  will,  but  he 
declined  to  draw  any  will  wherein  he  would  be  named  as  a 
beneficiary,  and  told  the  testator  that  if  he  wanted  him  to 
benefit  by  his  bounty  he  must  get  some  one  else  to  draw  the 
will.  The  subscribing  witness,  Dr.  Rowell,  is  the  man  who 
certified  that  the  deceased  died  of  typhoid  fever,  and  the 
other  subscribing  witness,  Anderson,  is  a  person  who  was 
without  occupation  and  was  accommodated  by  Rowell  with 
lodgings  in  his  office,  and  was  not  produced  at  the  contest 
owing  to  his  absence  in  unknown  parts  (Judge's  Notes,  page 
199). 

CONCLUSION  OF  COURT. 

In  all  that  Mr.  Pierson  did  he  may  have  been  acting  in  a 
perfectly  professional  manner,  and  yet  have  erred  in  his 
opinion  as  to  the  soundness  of  the  mind  of  the  testator,  for 
experience  teaches  even  those  who  come  into  daily  contact 
with  insane  persons  how  difficult  it  is  to  discern  the  fact  of  in- 
sanity, and  the  slightness  of  Mr.  Pierson 's  acquaintance  with 
the  testator  is  shown  when  he  states  that  although  he  had 
known  him  for  twentj^-five  years  he  had  never  seen  him  under 
the  influence  of  liquor.  IMy  own  conclusion  is,  upon  the 
whole  case,  that  the  testator  was  not  of  sound  mind  at  the 
time  of  the  execution  of  the  paper  offered  for  probate,  and 
that  he  was  unduly  influenced  thereto  by  the  residuary  lega- 
tee. 


532  Coffey's  Probate  Decisions,  Vol.  1. 

basis  of  conclusion. 

This  conclusion  is  based  upon  the  entire  body  of  evidence, 
which  has  been  thoroughly  examined  by  me.  I  have  not 
undertaken  to  digest  the  testimony  of  every  witness,  but  no 
one  of  them  has  been  excluded  from  consideration  in  reach- 
ing the  result,  which  seems  to  me  the  inevitable  event  of  an 
examination  of  the  facts  elicited  in  the  progress  of  a  contest 
which  was  characterized  throughout  on  both  sides  by  a  de- 
termination and  spirit  rarely  equaled. 

Probate  denied. 


One  may  Place  Himself  so  Far  Under  the  Influence  of  Intoxicating 
Liquor  that  for  the  time  being  he  cannot  do  any  legal  act,  or  he  may, 
by  an  excessive  use  of  alcoholic  stimulants  for  an  extended  period 
of  time,  perhaps  permanently  dethrone  his  reason.  A  person  may, 
therefore,  by  an  inordinate  indulgence  in  intoxicants,  temporarily  and 
possibly  permanently  incai^acitate  himself  to  make  a  will.  Yet  the 
fact  that  one  is  addicted  to  the  excessive  use  of  liquor,  or  that  he 
is  in  some  measure  under  its  influence,  manifestly  does  not,  as  a 
matter  of  law,  establish  a  want  of  testamentary  capacity.  Never- 
theless, such  inebriety  is  always  admissible  in  evidence  as  tending 
to  show  unsoundness  of  mind,  of  vulnerability  to  undue  influence,  its 
effect  being  question  of  fact  for  the  jury:  Estate  of  Hill,  ante,  p. 
380;  Estate  of  Cunningham,  52  Cal.  465;  Estate  of  Gharky,  57  Cal. 
274,  278;  Estate  of  Lang,  65  Cal.  19,  2  Pac.  491;  Estate  of  Wilson, 
117  Cal.  262,  49  Pac.  172;  In  re  D 'Avignon's  Will,  12  Colo.  App. 
489,  55  Pac.  936;  Estate  of  Van  Alstine,  26  Utah,  193,  72  Pac.  942; 
Estate  of  Eathjens,  45  Wash.  55,  87  Pac.  1070.  "We  cannot  say, 
as  a  rule  of  law,  that  because  a  man  is  a  drunkard,  therefore  he  is 
of  unsound  mind.  It  is  a  question  of  fact  for  the  jury  or  court 
below  to  determine  whether  the  inebriety  has  had  the  efl'ect  of  ren- 
dering his  mind  unsound,  either  permanently  or  temporarily,  cov- 
ering the  time  of  the  execution  of  the  alleged  will":  Estate  of  John- 
son, 57  Cal.  529. 

A  Will  is  not  Invalid  Because  It  may  Appear  Unwise,  Unjust,  or 
Unnatural  in  its  provisions,  for  the  law  does  not  make  the  right  of 
testamentary  disposition  dependent  upon  its  judicious  exercise:  Es- 
tate of  McDevitt,  95  Cal.  17,  30  Pac.  101;  Estate  of  Spencer,  96  Cal. 
448,  31  Pac.  453;  Estate  of  Kaufman,  117  Cal.  288,  59  Am.  St.  Eep. 
179,  49  Pac.  192;  Estate  of  Donovan,  140  Cal.  390,  73  Pac.  1081; 
Estate  of  Morey,  147  Cal.  495,  82  Pac.  57;  Ames  v.  Ames,  40  Or. 
495,  67  Pac.  757;  In  re  Turner's  Will  (Or.),  93  Pac.  461;  Estate  of 
Gorkow,  20  Wash.  563,  56  Pac.  385.  Nevertheless  the  injustice  or  un- 
naturalness  of  a  will  is  a  circumstance  which  may  be  considered  with 


Estate  of  Curtis.  533 

other  evidence  tending  to  show,  on  the  part  of  the  testator,  an 
unbalanced  mind  or  a  mind  susceptible  to  or  swayed  by  undue  in- 
fluence: Field  V.  Shorb,  99  Cal.  661,  34  Pac.  504;  Estate  of  Wilson, 
117  Cal.  262,  49  Pac.  172,  711;  Estate  of  Langford,  108  Cal.  608,  41 
Pac.  701;  Hubbard  v.  Hubbard,  7  Or.  42;  Eathjens  v.  Merrill,  38  Wash. 
442,  80  Pac.  754.  "That  a  will  is  what  may  be  called  undiitiful  is 
material  only  when  the  circumstances  are  such  as  to  show  that  the 
testator,  if  uninfluenced,  would  most  likely  have  made  what  is  called 
a  dutiful  will":   Estate  of  Euffino,  116  Cal.  304,  48  Pac.   127. 

On  Undue  Influence  as  invalidating  a  will,  see  Estate  of  Hill,  ante, 
p.  380,  and  note. 


Estate  of  PATRICK  CURTIS.  Deceased. 

[No.   16,787;    decided  July  30,   1896.] 
Probate    Court — Jurisdiction    to    Try    Title. — The     superior     court, 
sitting  in  probate,  has  no  authority  to  adjudicate  the  question  of  title 
to  personal  property  in  dispute  between  a  third  person  and  the  estate 
of  a  decedent. 

The  administratrix  of  the  estate  of  Patrick  Curtis,  de- 
ceased, filed  a  petition  alleging  that  certain  personal  property 
belonging  to  the  estate  was  in  the  possession  of  Patrick  Reddy, 
who  refused  to  deliver  it  to  her.  The  petitioner  prayed  for 
an  order  requiring  him  to  do  so.  A  citation  was  issued  and 
served  upon  the  respondent,  who  filed  his  answer  wherein 
he  denied  that  he  had  any  property  of  the  estate  in  his  cus- 
tody, and  alleged  that  decedent  had  given  him  the  property 
claimed  by  the  petitioner. 

Quitzow  &  Hurlbut,  for  administratrix. 

J.  C.  Campbell  and  W.  II.  Metson,  for  respondent. 

COFFEY,  J.  In  obedience  to  the  order  and  citation  of 
this  court,  certain  writings  of  Patrick  Curtis,  now  deceased, 
have  been  submitted  to  the  court  for  examination  and  inter- 
pretation, and  the  questions  are: 

First.  Do  these  writings  make  and  constitute  a  valid  gift 
causa  mortis?     And  if  not,  then, 


534  Coffey's  Probate  Decisions,  Vol.   1. 

Second.  Do  they  make  and  constitute  a  testamentary 
disposition  of  the  property  of  the  decedent — or,  in  other 
words,  can  those  writings  be  proved  and  probated  as  the  last 
will  and  testament  of  the  deceased? 

The  writings  are  all  dated  November  6,  1896,  and  it  is 
claimed  by  Mr.  Reddy  that  he  obtained  possession  of  all 
the  property  by  gift  on  the  eleventh  day  of  November  1895, 
and  the  evidence  shows  that  Patrick  Curtis  died  November 
25,  1895;  so  that  in  case  Mr.  Reddy  did  obtain  possession  of 
this  property  by  gift  on  November  11,  1895,  he  obtained  pos- 
session prior  to  the  death  of  the  donor. 

Section  1149  of  the  Civil  Code  is  as  follows:  "A  gift 
in  view  of  death  is  one  which  is  made  in  contemplation, 
fear  or  peril  of  death,  and  with  intent  that  it  shall  take 
effect  only  in  case  of  the  death  of  the  giver." 

In  this  matter  we  find  Mr.  Curtis  in  bed  suffering  from 
the  effects  of  a  severe  surgical  operation,  sending  to  Mr. 
Reddy,  through  the  agent  of  Mr.  Reddy  (not  the  agent  of 
Mr.  Curtis),  the  property  that  he  then  possessed.  The  means 
of  obtaining  possession  and  control  of  the  thing  was  thus 
given  to  Mr.  Reddy,  and  there  was  an  actual  delivery  of  the 
thing  to  him  during  the  life  of  Mr.  Curtis.  Hence  section 
1147  of  the  Civil  Code  was  complied  with.  Mr.  Reddy  actu- 
ally reduced  the  property  to  his  possession  before  the  death 
of  Mr.  Curtis.  The  gift  was  made  in  contemplation  of  the 
near  approach  of  death  by  the  donor.  The  proof  showed 
the  existence  of  a  bodily  disorder,  an  illness  which  imperiled 
the  donor's  life  and  which  eventually  terminated  it.  The 
gift  was  made,  therefore,  by  Mr.  Curtis  in  contemplation,  fear 
and  peril  of  death,  and  if  Mr.  Curtis  had  not  expressed  his 
intent  respecting  a  gift  of  that  character  it  made  no  differ- 
ence. The  expression  of  his  intent  respecting  the  gift  would 
neither  add  to  the  strength  nor  detract  from  it.  Section 
1149  of  the  Civil  Code  is  conclusive  upon  that  matter.  It 
determines  the  intent.  It  declares  that  "with  intent  that  it 
shall  take  effect  only  in  case  of  the  death  of  the  giver. ' ' 

To  repeat:  There  was  a  very  sick  man;  there  was  a  deliv- 
ery of  the  property  from  him  to  Mr.  Reddy  for  the  donee 
during  the  lifetime  of  the  giver.     The  giver  parted  with  all 


Estate  of  Curtis.  535 

dominion  over  the  property  at  that  time,  and  Mr.  Reddy 
actually  reduced  the  property  to  his  possession  and  tontrol 
during  the  lifetime  of  the  donor.  The  transaction,  there- 
fore, was  legally  complete  in  every  respect  when  the  prop- 
erty passed  from  the  control  of  Curtis  to  that  of  Mr.  Reddy, 
the  intent  being  fixed  by  statute,  and  Mr.  Curtis  actually 
dying  from  that  same  sickness :  See  Daniel  v.  Smith,  64  Cal. 
346,  30  Pac.  575. 

Counsel  for  administratrix  argue  strenuously  that  no  posses- 
sion, actual  or  symbolical,  was  given  to  Mr.  Reddy  by  the 
decedent.  It  is  difficult  for  the  court  to  understand  how, 
in  the  conceded  circumstances  of  this  case,  delivery  to  the 
donee  could  have  been  more  effectual. 

With  reference  to  an  acceptance  of  the  gift  on  the  part 
of  the  donee,  in  case  of  a  beneficial  gift,  the  assent  of  the 
donee  is  presumed  until  the  contrary  appears.  The  authori- 
ties so  hold :  9  Am.  &  Eng.  Ency.  of  Law,  p.  1351. 

A  gift  in  view  of  death  is  one  which  is  made  in  contem- 
plation, fear  or  peril  of  death,  and  with  intent  that  it  shall 
take  effect  only  in  case  of  the  death  of  the  giver:  Civ.  Code, 
sec.  1149. 

"There  must  be  a  delivery  of  the  property,  either  to  the 
donee  or  to  some  person  for  his  use  or  benefit,  and  the 
donor  must  part  with  all  dominion  over  the  property,  and 
the  title  must  vest  in  the  donee,  subject  to  the  right  of  the 
donor  at  any  time  during  his  life  to  revoke  the  gift.  (Dole 
V.  Lincoln,  31  Me.  428,  429 ;  Curry  v.  Powers,  70  N.  Y.  217, 
26  Am.  Rep.  577;  Hatch  v.  Atkinson,  56  Me.  327,  96  Am. 
Dec.  464;  Taylor  v.  Henry,  48  Md.  550,  30  Am.  Rep.  486.) 
All  the  authorities  agree  that  there  must  be  a  delivery  of 
the  property  intended  to  be  the  subject  of  the  gift.  (Hamor 
V.  Moore's  Admr.,  8  Ohio  St.  242;  Fiero  v.  Fiero,  5  Thomp. 
&  C.  151;  Case  v.  Dennison,  9  R.  I.  88,  11  Am.  Rep.  222; 
McGrath  v.  Reynolds,  116  Mass.  566.)"  Daniel  v.  Smith, 
supra. 

Is  there  any  such  delivery  established  by  the  evidence 
in  this  case,  with  intent  by  decedent  Curtis  to  part  with  all 
dominion  over  the  property? 


536  Coffey's  Probate  Decisions,  Vol.  1. 

Counsel  for  administratrix  insist  that  neither  the  writings 
submitted  in  evidence  nor  the  oral  testimony  show  a  deliv- 
ery to  the  donee  in  any  sense  whatever,  and  insist  that  the 
respondent  Reddy  was  the  agent  of  the  donor;  but  counsel 
mistake  the  evidence,  or  this  court  misapprehends  its  effect, 
for,  if  I  have  rightly  understood  the  facts,  the  respondent 
was  constituted  the  agent  of  the  donee,  and  as  such  agent 
was  the  recipient  of  the  gift,  thus  making  a  perfect  donation 
causa  mortis,  according  to  the  statute  and  the  decision  of  the 
supreme  court  in  Daniel  v.  Smith,  supra,  which  I  have  care- 
fully read,  and  which  agrees  with  all  the  authorities  sustain- 
ing the  contention  of  counsel,  that  to  constitute  a  valid  gift 
causa  mortis  the  gift  must  be  made  (1)  with  a  view  to  the 
donor's  death;  (2)  the  donor  must  die  of  that  ailment;  (3) 
there  must  be  an  actual  delivery  to  the  donee;  (4)  there 
must  be  an  acceptance  of  the  gift  by  the  donee;  and  (5) 
all  these  elements  must  concur  or  transpire  during  the  life- 
time of  the  donor;  all  of  these  conditions  must  be  fulfilled  to 
make  the  donation  perfect.  The  fallacy,  if  it  be  a  fallacy, 
of  the  argument  of  counsel  for  the  administratrix  lies  in 
their  reversal  of  Reddy 's  relation  to  the  deceased ;  he  was  not 
his  agent,  he  was  acting  for  the  donee;  the  delivery  to  re- 
spondent was  a  delivery  to  that  donee;  there  was  an  actual 
transfer  of  the  property  to  the  donee,  or  to  some  person 
for  his  use  and  benefit,  which  complied  with  the  requisite 
essential  to  the  validity  of  the  gift  causa  mortis. 

The  gift  was  made  in  contemplation  of  the  near  approach 
of  death  by  the  donor  Patrick  Curtis,  to  take  effect  absolutely 
only  upon  his  death;  there  was  a  delivery  of  the  property — 
"a  manual  tradition"  (according  to  Mr.  Justice  Thornton 
in  Daniel  v.  Smith,  page  350,  64  Cal.,  30  Pac.  575)— to  the 
respondent  Reddy  for  the  use  and  benefit  of  the  donee  John 
Edward  Curtis,  a  reduction  to  actual  possession,  an  accept- 
ance in  law,  during  the  life  of  the  donor  Patrick  Curtis,  and 
the  title  had  so  vested  in  the  donee,  subject  to  the  right  of 
the  donor  at  any  time  during  his  life  to  revoke  the  gift.  He 
died  without  having  made  any  revocation  and  the  title  be- 
came absolute  in  the  donee,  a  complete  and  perfect  investi- 
ture. 


Estate  of  Love.  537 

Out  of  respect  to  the  counsel  who  have  presented  so  elab- 
orate and  erudite  an  essay  upon  the  subject  matter  of  this 
opinion,  I  have  taken  the  pains  to  examine  a  question  which 
this  court,  sitting  in  its  purely  probate  character,  has  no 
power  to  deal  with  determinatively,  for  it  has  been  held  more 
than  once,  notably  in  Ex  parte  Casey,  71  Cal.  269,  12  Pac. 
118,  that  the  probate  forum  has  no  function  in  these  premises, 
and  therefore  whatever  judgment  I  might  attempt  to  pro- 
nounce would  be  vain  and  void. 

Shortly  stated,  this  court,  sitting  in  probate,  has  no  right 
conferred  by  the  constitution  or  by  the  statute  to  adjudicate 
the  question  of  title  to  property  in  a  proceeding  of  this  kind, 
and,  of  course,  such  a  point  may  not  be  M'aived,  even  if  it 
were  not  expressly  saved  herein  by  the  party  respondent, 
Reddy ;  for,  as  the  supreme  court  has  said,  such  an  issue,  vital 
to  the  exercise  of  the  court's  power,  cannot  legally  be  deter- 
mined in  such  a  proceeding.  He  is  entitled  to  be  heard 
according  to  the  forms  of  law,  in  an  appropriate  tribunal: 
Ex  parte  Hollis,  59  Cal.  406. 

Upon  the  ground  of  lack  of  jurisdiction  in  this  particular 
department  of  the  superior  court,  the  application  of  the 
administratrix  is  denied  and  the  citation  is  dismissed. 


Estate  of  HARLOW  S.  LOVE. 

[No.   2,287;   decided  April   10,   1883.] 

Executor — Compensation  for  Legal  Services  Rendered  by  Himself. — 
Where  an  executor  is  hinist'lf  an  attorney,  he  caiiiKit  chiiin  extra 
compensation  for  the  use  of  his  legal  knowledge  in  administering 
his  testator's  estate. 

Executor — Commissions  When  Value  of  Estate  Disputed. — Wlicrc 
an  executor  claims  coininissious  on  tlie  ajipraised  value  of  the  estate, 
which  value  is  disputed,  his  commissions  should  be  based  on  the  true 
value  of  the  property  as  proved  by  experts  on  the  hearing  of  his 
account. 

Executor — Performance  of  Decedent's  Contract. — Where  an  execu- 
tor carries  out  the  contract  of  his  decedent  to  perform  legal  services, 
the  money  received  therefor  should  belong  in  part  to  the  estate  and 
in  part  to  the  executor. 


538  Coffey's  Probate  Decisions,  Vol.   1. 

Executor — Delay  in  Settling  Estate. — Negligence  was  not,  under 
the  peculiar  circumstances  of  the  case,  held  imputable  to  the  executor, 
notwithstanding  the  administration  of  the  estate  was  not  closed  for 
nearly  sixteen  years. 

Executor. — Where  an  Executor  Allowed  Judgment  to  Go  Against 
Him  for  realty  which  had  come  into  his  possession,  he  having  acted 
in  good  faith,  he  should  not  be  charged  with  the  value  of  the  lot, 
but  only  for  an  amount  which  he  received  in  consideration  of  hisi 
consent  to  the  judgment. 

Executor. — An  Executor's  Eight  to  Commissions,  given  by  the 
statute,  is  absolute;  neglect  of  duty,  or  delay  in  closing  the  adminis- 
tration, will  not  take  it  away. 

Executor — Commissions. — A  Quitclaim  of  All  the  Executor's  In- 
terest in  his  decedent's  property  will  not  operate  or  be  construed  as 
a  waiver  of  commissions. 

Executor. — Where  Items  in  an  Executor's  Account  are  payments 
arising  out  of  mortgages  given  by  the  universal  devisee  and  legatee, 
they  should  nevertheless  be  allowed,  where  the  moneys  were  devoted 
to  the  maintenance  of  the  widow  and  family,  and  paid  at  her  re- 
quest, she  being  universal  devisee. 

Executor. — Items  in  an  Executor's  Account  of  expense  for  ab- 
stracts of  title  and  driving  squatters  off  of  realty  should  be  allowed, 
when  paid  for  the  widow's  benefit  and  at  her  request,  she  being  the 
universal  devisee. 

Executor. — Items  in  an  Executor's  Account  of  Expense  of  flowers 
for  grave,  of  insuring  personalty  never  in  his  possession,  examining 
tax  lists  and  recording  a  deed  to  a  legatee,  should  be  disallowed. 

Executor. — Items  of  Expense  in  an  Executor's  Account  for  printing 
a  brief,  the  amount  or  payees  not  being  shown;  interest  on  a  note 
made  by  a  legatee,  for  $100,  without  voucher,  and  tax  charges  with- 
out sufiicient  voucher,  were  disallowed. 

Executor. — An  Item  of  Expense  in  an  Executor's  Account,  for  re- 
demption under  tax  sales,  may  be  allowed. 

Executor. — Where  Property  of  an  Estate  has  been  Taken  by  the 
City  for  a  Park,  the  executor  should  not  be  charged  with  the  value 
of  the  land,  but  only  with  the  amount  received  by  him  from  such 
source. 

Executor — Commissions. — Where  a  Bank  Loaned  Money  to  a  uni- 
versal devisee  on  the  executor's  representation  that  a  speedy  distri- 
bution could  be  had  and  he  would  obtain  it,  and  the  executor  filed 
a  worthless  petition  therefor,  he  is  estopped  from  claiming  commis- 
sions as  against  the  bank. 

Executor. — An  Expense  of  $147.50  for  a  Wall  Around  a  Cemetery 
Lot  may  be  allowed  as  a  proper  and  usual  charge  against  a  decedent 's 
estate. 


Estate  of  Love.  539 

Executor. — A  Mortgagee  of  Land  Inventoried  in  the  Estate,  under 
a  mortgage  made  by  the  universal  devisee  and  legatee  of  the  testa- 
tor, is  a  party  interested  in  the  estate,  and  entitled  to  be  heard 
upon  the  executor's  accounts,  and  on  any  distribution  of  the  estate. 
Likewise,  a  judgment  debtor  of  such  devisee,  who  has  acquired, 
under  execution  upon  the  judgment,  title  to  a  parcel  of  the  realty 
inventoried  in  the  estate,  is  also  a  party  interested  in  the  estate;  so, 
also,  is  a  mortgagee  of  such  judgment  debtor. 

The  opinion  of  the  court  in  this  ease  was  rendered  upon 
a  motion  to  confirm  the  report  of  John  M.  Burnett,  referee 
to  examine  and  report  upon  the  final  account  of  John  Lord 
Love,  executor,  and  the  exceptions  thereto,  which  report  was 
filed  December  7,  1882.  As  a  general  statement  of  the  whole 
case  (apart  from  the  special  facts  considered  with  reference 
to  the  specific  objections  to  the  account),  the  following  is 
taken  from  Mr.  Burnett's  report: 

"From  the  proofs,  both  oral  and  documentary,  and  the 
admissions  of  the  parties,  I  find  the  following  facts : 

"Harlow  S.  Love,  the  testator,  died  on  the  15th  day  of 
March,  1866,  leaving  a  last  will  by  which  he  devised  and 
bequeathed  to  his  wife,  Martha  C.  M.  Love,  all  his  estate,  with 
the  exception  of  a  small  legacy  to  each  child,  and  appointed 
his  son,  John  Lord  Love,  executor. 

"The  will  was  filed  in  the  then  Probate  Court  of  this  city 
and  county,  on  the  12th  day  of  June,  1866,  and  on  the  28th 
day  of  September,  1866,  was  duly  admitted  to  probate.  Let- 
ters testamentary  were  issued  May  16,  1867,  to  John  Lord 
Love,  who  qualified  on  said  day,  and  has  ever  since  been 
executor.  On  the  29th  day  of  March,  1870,  an  order  of 
publication  of  notice  to  creditors  was  made,  and  on  the  24th 
day  of  October,  1871,  a  decree  showing  due  publication  of 
such  notice  was  entered  and  filed. 

"On  the  18th  day  of  December,  1877,  the  executor  filed  in 
the  Probate  Court  his  petition  for  a  distribution  of  the  estate, 
setting  forth  he  was  about  to  make  an  inventory,  and  was 
'about  to  file  his  accounts  as  said  executor,'  and  containing 
the  allegation  that  all  the  'debts  of  said  deceased  and  of  said 
estate,  and  all  the  expenses  of  the  administration  thus  far 
incurred,'  had  been  paid  and  discharged,  and  that  the  estate 
was  in  a  condition  to  be  closed. 


540  Coffey's  Probate  Decisions,  Vol.  1. 

"The  inventory  was  filed  October  10,  1882,  and  no  account 
was  filed  until  November  1,  1882,  when  the  present  account 
was  filed  after  a  citation  was  issued  by  this  court. 

"On  the  17th  day  of  August,  1868,  Mrs.  Love  made  a 
mortgage  to  the  German  Savings  and  Loan  Society  (in  which 
she  was  joined  by  John  L.  Love,  as  an  individual)  for  $2,500; 
on  the  23d  of  September,  1868,  another  mortgage  (in  which 
she  was  also  joined  by  him  as  an  individual)  for  $2,500;  on 
the  31st  day  of  September,  1868,  to  the  French  Bank  (in 
which  she  was  joined  by  Mr.  Love  as  executor)  for  $3,000; 
on  the  24th  of  November,  1869,  to  the  German  S.  &  L.  Society 
aforesaid  (in  which  she  was  joined  by  Mr.  Love  as  an  indi- 
vidual) for  $4,500.  Finally,  in  December,  1877,  she  made  a 
mortgage  to  the  Hibernia  Savings  and  Loan  Society  to  secure 
the  payment  of  $30,000,  which  mortgage  covered  the  lands 
described  in  the  objections  of  the  said  Hibernia  Bank.  This 
mortgage  was  foreclosed  in  due  course,  and  the  title  of 
the  mortgagors  to  the  mortgaged  property  finally  vested 
in  the  bank  by  sheriff's  deed,  which  corporation  now  holds 
the  same. 

"On  the  3d  day  of  December,  1878,  Louis  T.  Lazme  com- 
menced an  action  against  M.  C.  M.  Love  to  recover  certain 
moneys,  and.  on  a  judgment  being  rendered  in  his  favor,  sold 
under  execution  the  property  thirdly  and  fourthly  described 
in  the  inventory.  In  due  course  of  time  a  sheriff's  deed  was 
made,  conveying  the  same  to  Leila  L.  Foster,  the  contestant 
herein,  who  is  now  the  owner  thereof,  subject  to  mortgages 
made  by  her  to  the  Pacific  Bank,  which  mortgages  are  unpaid. 

"About  the  year  1872,  fifty-vara  lot  number  1  in  block  599, 
and  an  irregular  long  strip  running  into  blocks  521  and  600, 
were  taken  for  the  Buena  Vista  Park,  under  order  800  of  the 
Board  of  Supervisors ;  and  in  the  year  188 — ,  a  decree  quiet- 
ing title  as  against  the  estate  was  rendered  in  the  case  of 
Bornheimer  v.  Baldwin  et  al.,  for  a  part  of  the  land  described 
in  the  inventory. 

"I  find  that  by  these  transactions  the  entire  interest  of 
Mrs.  Love,  the  residuary  legatee  and  devisee,  in  the  estate  was 
divested,  and  that  the  contestants  are  interested  in  the  estate'^ 
(pp.  2-5). 


Estate  op  Love.  541 

The  special  findings  of  fact  and  conclusions  of  law  by 
the  referee,  with  respect  and  directed  particularly  to  the 
various  specific  objections  and  exceptions  to  the  executor's 
account,  are  also  here  given,  to  be  read  in  connection  with 
the   opinion  of  the  court. 

As  to  the  value  of  the  estate  referred  to  in  the  court's 
opinion,  the  referee's  report  said: 

"Proof  was  made  as  to  the  value  of  the  lands  described 
in  the  inventory,  and  I  find  the  value,  at  the  date  of  filing 
it,  to  be  $49,000.  On  this  amount  the  commissions  of  the 
executor  if  allowed  would  amount  to  the  sum  of  $2,090" 
(p.  9). 

As  to  the  executor's  right  to  retain  the  fee  received  in 
Clark  V.  Reese  (arising  out  of  a  personal  contract  of  dece- 
dent), the  referee  said: 

"I  further  find  that  in  February,  1866,  the  testator  made 
a  contract  with  Mrs.  Clark  to  bring  a  suit  against  Michael 
Reese,  and  associated  Alexander  Campbell,  Jr.,  with  him. 
The  suit  was  commenced  during  the  lifetime  of  the  decedent, 
but  was  not  tried  until  after  his  death.  Mr.  Love,  the  execu- 
tor, made  no  contract  with  Mrs.  Clark  or  with  ]\Ir.  Campbell 
on  his  father's  death,  but  went  into  the  case  and  assisted 
to  prepare  it  for  trial ;  participated  in  the  trial ;  prepared 
amendments  to  the  statement  on  motion  for  a  new  trial,  and 
assisted  generally  in  the  case  until  its  final  disposition  in 
the  supreme  court.  The  decedent  and  Mr.  Campbell  were 
to  get  one-half  of  the  amount  recovered,  and  were  to  divide 
equally  among  themselves.  The  plaintiff  eventually  received 
$6,000  in  currency,  and  of  the  $3,000  coming  to  the  attorneys, 
$1,500  was  paid  to  Mr.  Love.  He  contends  the  whole  belongs 
to  him — the  contestants  aver  he  holds  the  entire  sum  for  the 
benefit  of  the  estate. 

"It  is  evident  some  part  of  the  money  belongs  to  the  estate. 
The  testator  had  performed  a  portion  of  the  service  by  which 
the  money  was  earned ;  on  the  other  hand,  the  contract  of  an 
attorney  is  personal,  and  the  relation  between  him  and  his 
client  is  severed  by  death.  I  think  the  executor  should  only 
be  charged  with  $350  in  gold,  being  one-third  of  the  amount 
as  near  as  may  be"  (pp.  11,  12). 


542  Coffey's  Probate  Decisions,  Vol.  1. 

As  to  the  delay  in  settling  the  estate,  which  was  excused  by 
the  court,  the  referee's  statement  will  be  found  below  in  the 
quotation  from  the  referee's  report  as  to  the  executor's  right 
to  commissions   (pp.  13,  14). 

As  to  the  Bornheimer  lot,  referred  to  by  the  court,  over- 
ruling the  referee,  the  report  of  the  referee  said: 

''The  suit  of  Bornheimer  v.  Love  et  al..  Executor,  was  for 
the  property  firstly  described  in  the  inventory.  I  find  the 
executor  not  only  allowed  judgment  to  be  taken,  but  received 
$825  for  so  doing,  for  which  he  has  given  no  account. 

"While  the  judgment  was  without  costs,  yet,  as  the  law 
requires  executors  to  exercise  the  greatest  care,  I  hold  he 
had  no  right  to  consent  to  such  a  judgment.  Having  received 
the  property  in  his  possession,  his  account  of  its  loss  is  not 
sufficient,  and  he  must  be  charged  with  its  value,  which  is 
$3,000.  I  recognize  the  fact  that  this  is  a  hard  case,  but  it 
seems  to  me  the  law  is  clear"   (pp.  12-13). 

As  to  the  executor's  absolute  right  to  commissions,  as 
held  by  the  court,  the  referee 's  report  said : 

"The  contestants  object  to  any  allowance  of  commissions 
to  the  executor,  on  the  ground  that  there  has  been  gross 
neglect,  delay  and  carelessness  in  the  administration  of  the 
estate.  I  find  that  the  executor  has  kept  no  accounts  what- 
ever ;  that  as  testified  to  by  him,  the  account  filed  was  made  up 
from  vouchers  and  his  memory;  that  nearly  a  year  elapsed 
from  the  filing  of  the  will  until  letters  testamentary  were 
issued  to  him ;  that  nearly  four  years  elapsed  from  the  filing 
of  the  will  until  notice  to  creditors  was  published;  that  no 
inventory  was  filed  for  over  sixteen  years,  and  that  no  account 
was  filed  until  citation  was  issued.  It  is  also  in  proof  that  he 
is  a  lawyer,  the  only  son  of  decedent  and  the  residuary 
legatee  and  devisee ;  his  mother  was  not  acquainted  with  busi- 
ness, and  was  not  fit  to  manage  her  affairs  alone.  Mr.  Love 
was  called  on  frequently  to  join  his  mother  in  the  mortgages 
given  by  her,  and  on  each  occasion  must  have  felt  the  neces- 
sity of  a  settlement  of  the  estate.  Our  law  contemplates  the 
speedy  settlement  of  estates.  I  feel  compelled  to  hold,  under 
the  authorities  cited  by  counsel,  that  commissions  should  not 
be  allowed"   (pp.  13,  14). 


Estate  of  Love.  543 

As  to  the  executor's  waiver  of  commissions  claimed  by 
objectors  and  contestants,  the  referee  said : 

' '  Contestants  read  in  evidence  a  quit-claim  deed  from  John 
S.  Love  to  M.  C.  M.  Love,  dated  in  1877,  and  executed  just 
prior  to  the  'Hibernia  Bank  Loan,'  and  claim  it  operates, 
per  se,  as  a  waiver  of  commissions.  I  do  not  so  consider  it. 
While  the  deed  covered  all  the  land  of  the  estate,  it  only  con- 
veyed the  interest  of  the  grantor,  acquired  by  a  prior  deed 
from  Olds,  or  such  other  as  he  had  in  the  law,  and  not  his 
right  to  commissions  as  executor"  (p.  15). 

As  to  payments  made  to  the  German  and  French  Banks, 
arising  out  of  mortgages  given  by  the  universal  devisee  and 
legatee,  the  referee  found  and  held : 

"All  the  items  of  payments  made  through  the  German 
Savings  &  Loan  Society  and  French  Bank  (not  specially 
withdrawn),  and  which  aggregate:  Paid  German  Bank 
$4,396.35,  paid  French  Bank  $943— $5,339.35,  I  reject,  on 
the  ground  that  they  were  payments  made  on  mortgages 
given  by  the  residuary  legatee,  and  are  not  proper  charges 
against  the  estate"  (p.  7). 

As  to  items  numbers  18,  37  and  25;  items  numbers  4,  26, 
86,  118  and  112 ;  items  numbers  13,  66,  72  and  80 ;  items  82, 
83,  84,  85,  and  item  92,  referred  to  in  the  court's  opinion, 
the  referee  said : 

"I  also  reject  item  4,  of  $7  for  flowers  for  grave.  Item 
26,  of  $29  insurance  on  personal  property,  which  the  executor 
never  took  into  his  possession,  but  turned  over  to  the  residuary 
legatee ;  item  18,  of  $10  paid  Brooks  &  Rouleau  for  abstract, 
which  I  find  was  for  the  use  of  Mrs.  Love  to  secure  loan  from 
German  Bank;  item,  25,  of  $75  paid  Michael  Dalton,  for 
driving  off  squatters  and  burning  of  fences;  item  37,  for 
$15  paid  Rouleau  &  Mills  for  abstract,  which  I  find  was  for 
Mrs.  Love's  purposes;  item  86,  of  $5  paid  G.  F.  Sharp  for 
looking  up  tax  lists,  which  was  executor's  duty;  and  also 
item  118,  of  $5  paid  Hart  for  similar  services,  and  item  112, 
of  $2.25  paid  for  recording  deed  from  Olds  to  John  L.  Love, 
on  the  ground  that  they  were  not  proper  charges  against  the 
estate. 


544  Coffey's  Probate  Decisions,  Vol.  1. 

"I  also  rejected  item  13,  for  $20  paid  for  printing  brief 
in  Judson  v.  Molloy,  because  the  testimony  did  not  show  the 
amount  nor  persons  to  whom  paid;  $50  of  item  66,  paid 
Kouleau,  as  interest  on  note  made  by  Mr.  Love,  on  the  ground 
that  the  executor  had  no  right  to  pay  interest;  item  72, 
paid  Jarboe  &  Harrison  $100,  on  the  ground  that  there  was 
no  voucher,  and  no  proof  as  to  amount  paid;  item  80,  paid 
J.  P.  Dameron  for  taxes  1871-2,  $25.89,  on  the  ground  that 
there  was  no  sufficient  voucher. 

"The  items  for  redemption  of  property  from  tax  sales 
1871-2,  being  items  82,  83,  84,  85,  amounting  in  the  aggregate 
$142.64,  I  have  allowed  in  part  and  rejected  in  part.  The 
executor  should  have  distributed  the  estate,  as  nearly  six 
years  had  elapsed  when  the  items  were  paid  since  the  will 
was  admitted  to  probate,  or  should  have  made  a  sale  to  pro- 
vide money  for  taxes.  I  have  credited  him  with  the  taxes, 
and  have  rejected  the  fifty  per  cent,  required  for  redemption, 
as  shown  by  the  annexed  account. 

''I  have  rejected  item  92,  for  $47.75,  taxes  1872-73,  on 
block  520,  because  there  is  no  voucher"  (pp.  7-9). 

As  to  land  taken  for  Buena  Vista  Park,  the  referee  said: 

"The  executor  has  failed  to  charge  himself  in  his  accounts 
with  any  receipts  of  money,  but  admits  in  his  report  of  having 
received  $780  for  property  taken  for  Buena  Vista  Park 
With  this  amount  he  should  certainly  be  charged,  but  the  con- 
testants seek  to  charge  him  with  the  value  of  the  land  taken, 
which  is  estimated  by  an  expert  to  have  been  $2,000.  The 
executor  testified  that  he  only  received  the  $780.20 ;  that  there 
were  benefits  assessed  against  the  property  of  the  estate,  as 
well  as  damages  awarded  for  the  land  taken,  and  that,  ac- 
cording to  his  best  recollection,  the  amount  he  received  was 
for  the  difference.  The  public  records  by  which  the  matter 
could  be  settled  have  been  lost  or  destroyed,  and  I  am  com- 
pelled to  decide  upon  the  evidence  as  it  now  stands.  As  the 
executor  cannot  be  held  responsible  for  the  loss  of  the  records, 
and  as  the  law  provides  for  such  assessments  and  awards,  I 
hold  that  he  shall  only  be  charged  with  the  sum  received" 
(pp.  10-11). 


Estate  of  Love.  545 

As  to  the  estoppel  claimed  by  the  Hibernia  Savings  and 
Loan  Society  in  its  favor,  against  the  executor,  the  referee 
said: 

"In  1877  the  Hibernia  Bank  was  about  to  loan  money  on 
mortgage  to  Mrs.  Love.  The  attorney  of  the  bank  was  as- 
sured by  Mr.  Love  that  there  was  no  obstacle  in  the  way  of 
a  speedy  distribution  of  the  property  to  his  mother,  and  that 
he  would  attend  to  the  matter.  The  bank 's  attorney  required 
a  petition  for  a  distribution  to  be  filed,  and  a  letter  from  the 
clerk  of  the  Court  certifying  to  that  fact,  before  the  loan  was 
passed.  The  petition  was  filed  and  the  letter  was  sent,  but 
as  the  document  was  worthless  as  a  petition  it  was  never 
acted  upon.  The  loan  was  made  under  these  circumstances. 
As  to  the  bank,  the  executor  should  be  estopped  from  claim- 
ing commissions"  (p.  14). 

There  is  also  another  item,  not  specially  referred  to  in  the 
opinion  of  the  court,  but  as  to  which  the  action  of  the  referee 
is  in  general  terms  confirmed.  The  item  is  thus  set  forth  in 
the  referee's  opinion: 

'*I  allow  $147.50  for  wall  around  cemetery  lot  (included  in 
item  47),  on  the  ground  that  it  is  a  proper  and  usual  charge, 
although  the  Estate  of  Barclay,  11  Phil.  123,  is  directly 
against  such  allowance.  I  find  the  rulings  of  our  own  Courts 
sustain  my  position"  (pp.  9-10). 

As  to  the  fact  and  legal  conclusion  that  the  contestants 
were  parties  interested  in  the  estate,  and  so  treated  by  the 
court,  the  referee's  statement  of  facts  and  his  conclusions  on 
that  point  will  be  found  above  in  the  first  quotation  from  the 
referee's  report, 

OBJECTIONS    CONSIDERED    BY    REFEREE. 

There  were  presented  objections  to  the  executor's  account 
on  behalf  of  all  the  parties  claiming  to  be  interested  in  the 

estate. 

On  November  13,  1882,  Leila  L.  Foster  filed  exceptions  as 
daughter,  and  successor  in  interest  by  various  deeds,  convey- 
ances, etc.,  of  M.  C.  M.  Love,  the  widow  and  residuar^^  lega- 
tee and  devisee  of  decedent,  to  the  lands  thirdly  and  fourthly 
in  the  inventory  described,  upon  the  grounds:  (1)   That  no 

Prob.  Dec,  Vol.  I — 35 


546  Coffey's  Probate  Decisions,  Vol.  1. 

vouchers  were  presented  in  support  of  the  account;  (2)  that 
the  payments  specified  in  the  account  were  made  with  moneys 
obtained  by  M.  C.  M.  Love  from  mortgages  given  by  her  on 
property  of  the  estate,  or  moneys  advanced  by  her  and 
by  the  objector,  to  the  executor;  (3)  that  executor  has  not 
charged  himself  with  various  moneys  received  (among  others, 
moneys  received  by  Mrs.  Love  on  mortgages)  ;  (4)  that  ex- 
ecutor has  grossly  neglected  and  violated  his  duties  and  trust, 
and  no  commissions  or  compensation  for  extra  services  should 
be  allowed  him;  (5)  that  executor  has  caused  valuation  and 
appraisement  of  the  estate  to  be  increased  to  three  times 
its  true  value  in  orSer  that  his  commissions  may  be  thereby 
increased;  (5a)  that  executor's  services  were  to  be  free,  and 
for  the  advantage  of  his  mother,  the  universal  devisee;  that 
no  charge  for  services  should  be  allowed,  as  all  the  estate 
was  realty,  and  the  executor  in  December,  1877,  released 
all  his  interest  in  it  to  his  mother;  (7)  disbursements  and 
advances  claimed  by  executor  are  barred  by  sections  337, 
338,  339,  343,  Code  of  Civil  Procedure;  (8)  the  credits 
claimed  by  the  executor  are  stale;  and  (9)  the  estate  should 
have  been  closed  before  January  1,  1869,  and  so  executor 
is  not  entitled  to  claim  for  advances  or  services. 

On  November  16,  1882,  the  Hibernia  Savings  and  Loan 
Society  (of  San  Francisco)  filed  objections  on  same  grounds 
made  by  Mrs.  Leila  L.  Foster,  and  also  as  follows:  (1)  Ob- 
jector is  successor  in  interest  of  M.  C.  M.  Love,  and  has  ac- 
quired her  title  to  land  in  inventory  described,  under  fore- 
closure of  mortgage  made  by  her  to  the  bank  to  secure  a 
sum  of  money  borrowed;  (2)  "Said  loan  was  negotiated  for 
in  part  by  said  John  L.  Love,  and  was  made  upon  an  ex- 
press agreement,  personally  made  between  said  corporation 
and  said  John  L.  Love,  that  said  property  was  free  from  all 
liabilities  to  said  John  L.  Love,  arising  from  his  connection 
with  said  estate  or  otherwise,  and  that  said  property  should 
be  distributed  to  said  M.  C.  M.  Love  as  soon  as  possible  after 
the  making  of  said  loan ;  and  that  he,  the  said  John  L.  Love, 
would  take  the  necessary  proceedings  for  that  purpose;  and 
said  loan  was  made  upon  the  faith  of  said  agreement." 
(4  [3] )  Said  John  L.  Love  conveyed  to  said  M.  C.  M.  Love, 


Estate  of  Love.  547 

by  deed,  all  his  right,  title  and  interest  in  and  to  said  real 
property  at  the  time  said  loan  was  made. 

On  November  25,  1882,  objections  were  filed  by  Pacific 
Bank  (of  San  Francisco),  showing:  That  objector  is  mort- 
gagee of  Leila  L.  Foster,  under  mortgage  upon  two  parcels 
of  land  in  inventory  described;  that  at  dates  of  mortgage 
Leila  L.  Foster  had  acquired  title  of  M.  C.  M.  Love,  the 
universal  devisee,  to  the  aforesaid  lots  of  land,  and,  there- 
fore, Foster  is  entitled  to  distribution.  So  objector,  as  such 
mortgagee,  is  interested  in  the  estate. 

There  were  also  objections  to  the  referee's  report  filed  on 
behalf  of  the  executor  December  14,  1882.  These  objections 
by  the  executor  were  detailed  and  elaborate,  but  not  neces- 
sary to  be  set  out  here. 

It  should  also  be  noted,  what  does  not  appear  in  the  re- 
port of  the  referee,  or  the  opinion  of  the  court,  that  the 
aggregate  valuation  of  the  estate  (all  realty,  seven  lots), 
as  fixed  by  the  official  appraisement  returned  by  the  executor, 
was  $86,000.  The  experts  independently  examined  by  the 
referee,  and  whose  testimony  was  accepted  by  the  court,  were 
different  persons  from  the  appraisers  previously  appointed. 

John  M.  Burnett,  referee. 

Geo.  R.  B.  Hayes  (Stanly,  Stoney  &  Hayes),  for  Leila 
L.  Foster. 

Tobin  &  Tobin,  for  Hibernia  Bank. 

Winans,  Belknap  &  Godoy,  for  Pacific  Bank. 

John  S.  Bugbee,  with  him  Mr.  T.  B.  Bishop,  for  executor 
Love. 

COFFEY,  J.  This  is  a  motion  to  confirm  the  report  of 
the  referee  to  whom  the  matter  of  the  final  account  of  the 
executor  was  referred,  and  to  settle  said  account  in  accord- 
ance with  said  report,  and  for  a  decree  distributing  the  prop- 
erty of  said  estate  to  the  parties  entitled  thereto.  The  mo- 
tion comes  before  this  department  on  stipulation.  The  par- 
ties interested  are  the  executor,  John  Lord  Love:  Leila  L. 
Foster,  who  appears  as  the  successor  in  interest  by  purchase 


548  Coffey's  Probate  Decisions,  Vol,  1. 

of  Martha  C.  M.  Love,  the  widow  and  residuary  legatee  and 
devisee  of  the  decedent;  the  Pacific  Bank  and  the  Hibernia 
Savings  and  Loan  Society,  mortgagees. 

On  the  hearing  of  the  motion  the  executor  appeared  by 
John  S.  Bugbee,  Esq.,  and  T.  B.  Bishop,  Esq.,  who  opposed 
confirmation  of  the  report  of  the  referee;  and  Leila  L.  Fos- 
ter, contestant,  appeared  by  Geo.  R.  B.  Hayes,  Esq. 

As  to  claim  for  extraordinary  services :  There  is  no  error 
here.  In  my  judgment  the  executor  is  entitled  to  no  com- 
pensation for  extraordinary  services. 

It  is  true  he  performed  a  duty  advantageous  to  the  estate, 
but  he  would  have  been  grossly  negligent  if  he  had  not  used 
his  ability  in  and  knowledge  of  the  law  to  have  done  so ;  and 
it  appears  a  particular  stress  was  laid  by  his  mother  upon 
the  fact  that  he  was  a  lawyer,  and  there  was  no  necessity  of 
going  to  extra  expense  of  employing  another  to  do  the  duty 
the  executor  was  competent  to  perform.  The  principle  and 
the  policy  which  oppose  the  allowance  of  such  a  claim  are 
too  well  settled  to  be  now  disturbed  or  assailed:  Collier  v. 
Munn,  41  N.  Y.  143. 

As  to  value  of  estate :  I  think  the  proof  is  that  the  value 
of  the  estate  was  no  more  than  $49,000,  according  to  evi- 
dence of  Middleton  and  Magee ;  and  I  think  the  commissions 
of  executor  should  be  based  upon  this  proof.  As  to  valua- 
tion, there  is  no  error. 

As  to  fee  in  Clark  v.  Eeese,  it  seems  to  me  Harlow  S.  Love 
earned  a  right,  dependent  upon  the  result,  to  the  portion  al- 
lowed by  the  referee;  and  that  when  the  executor  was  paid 
the  one-half  of  the  contingent  fee,  his  associate,  Campbell, 
paid  it  in  recognition  of  the  interest  the  decedent  had  in  the 
case  as  attorney.  The  moral  right  of  the  estate  to  a  portion 
of  this  fee  is  very  clear;  and  the  apportionment  by  the  ref- 
eree seems  to  be  based  upon  a  correct  principle.  If  there  is 
any  doubt  in  my  mind,  it  is  that  the  estate  has  had  less  than 
its  due  awarded  to  it. 

As  to  the  delay  in  settling  the  estate,  some  indulgence  may 
be  extended  to  the  executor,  after  examining  his  evidence. 
"While  ordinarily  in  such  a  case  he  might  seem  to  be  charge- 
able with  great  negligence,  and  an  extreme  lack  of  diligence 


Estate  op  Love.  549 

in  closing  the  estate,  the  peculiar  circumstances  here  induce 
me  to  view  his  apparent  dilatoriness  with  charity;  and  I 
should  not  feel  justified  in  imputing  to  him  very  great  blame. 
Much  of  the  delay  was  caused  by  the  exaggerated  notions  of 
his  mother  as  to  the  value  of  the  property,  and  while  a  more 
methodical  business  man  would  not  regard  such  considera- 
tions, we  cannot  entirely  remove  from  our  view  the  influence 
his  mother  had  over  him  in  protracting  the  settlement,  in 
view  of  her  interest  in  the  estate. 

As  to  the  Bornheimer  lot,  I  think  the  referee  did  not  err 
in  charging  the  executor  with  the  simi  of  $825.  Beyond 
that,  I  think  the  referee  erred  in  charging  the  executor  with 
the  full  value  of  the  lot.  I  think  the  executor  acted  in  good 
faith  and  used  his  best  judgment  in  that  case,  and  should  not 
be  held  accountable  for  error  in  the  exercise  of  that  judg- 
ment, if  it  were  an  error. 

The  items  aggregating  $351.31  (page  7  of  referee's  report) 
were  properly  rejected,  the  claims  not  having  been  properly 
presented  or  allowed,  except  the  items  of  $20  and  under,  Nos. 
6,  20,  115,  117 :  Code  Civ.  Proc,  sec.  1632. 

As  to  commissions  of  executor:  The  right  to  commissions 
on  the  part  of  executor  is  absolute  under  the  statute. 

The  strongest  cases  uphold  this  view  where  the  compen- 
sation is  fixed  by  law.  In  this  respect  the  referee  erred, 
and  the  executor  is  entitled  to  his  commissions  on  the  proved 
value  of  the  estate,  to  wit,  forty-nine  thousand  dollars 
($49,000). 

As  to  payments  made  to  German  Savings  and  Loan  So- 
ciety and  the  French  Savings  Bank :  I  think  the  referee  erred 
in  rejecting  the  claims  for  the  payments  to  these  accounts, 
because  it  appears  the  moneys  obtained  were  devoted  to  the 
maintenance  of  the  widow  and  her  family,  and  with  a  view 
to  the  preservation,  care  and  management  and  settlement  of 
the  estate ;  and  it  was  done  for  and  at  the  request  of  his 
mother,  who  was  the  universal  devisee  and  legatee. 

As  to  items  rejected.  No.  18  (for  abstract  in  loan  from 
German  Bank),  No.  37  (for  abstract),  and  item  No.  25  (paid 
Dalton  for  driving  off  squatters),  the  referee  erred,  as  I  think 
these  items  were  proper  charges  against  the  estate.     Items 


550  Coffey's  Probate  Decisions,  Vol.  1. 

Nos.  4,  26,  86,  118,  112  were  properly  rejected  by  the  referee. 
Items  Nos.  13,  66,  72  and  80  were  also  properly  rejected,  for 
the  reasons  set  forth  in  the  report  of  referee. 

I  think  the  referee  erred  in  rejecting  the  percentage  for 
redemption  in  the  items  Nos.  82,  83,  84,  85,  as  under  the  cir- 
cumstances adverted  to  in  the  executor's  testimony  I  do  not 
feel  at  liberty  to  hold  him  culpable  to  this  extent. 

Item  No.  92  was  properly  rejected. 

As  to  $780  received  for  property  taken  for  Buena  Vista 
Park,  the  referee  has  not  erred  in  his  findings  in  that  par- 
ticular. The  executor  is  properly  chargeable  with  that  sum, 
and  I  find  nothing  in  the  record  which  justifies  a  reversal  of 
the  referee's  judgment  as  to  that. 

As  to  the  estoppel  claimed  for  the  Hibernia  Savings  and 
Loan  Society:  I  think  the  loan  made  by  the  bank  was  upon 
the  faith  of  representations  made  to  its  attorney  by  the  ex- 
ecutor, which  estop  him  from  claiming  commissions  as  against 
the  bank.     In  this  finding  of  the  referee  I  see  no  error. 

In  all  respects,  except  as  herein  modified,  the  report  of 
the  referee  should  be  confirmed,  and  it  is  so  ordered. 


In  Case  an  Executor  or  Administrator  is  Himself  an  Attorney,  he 

cannot  charge  the  estate  with  the  expense  of  another  attorney  to 
assist  him  in  conducting  an  ordinary  administration,  unattended 
with  any  legal  or  other  complications.  He  is  required  to  exercise 
his  own  professional  skill,  and  this  without  extra  compensation. 
Undoubtedly  complications  or  litigation  may  arise  which  will  en- 
title an  administrator,  though  himself  a  lawyer,  to  the  assistance  of 
legal  advice  and  counsel,  but  he  cannot  enlist  such  assistance,  and 
have  the  cost  thereof  allowed  in  his  account,  in  conducting  ordinary 
jjrobate  proceedings;   1  Eoss  on  Probate  Law  and  Practice,  765. 

An  Executor  or  Administrator  does  not  Necessarily  Forfeit  His 
Eight  to  Compensation  by  dereliction  of  duty.  In  the  event  of  the 
estate  sustaining  loss  by  his  default  or  neglect,  he  should  be  charged 
with  such  loss  in  his  account,  and  be  allowed  his  commissions:  Estate 
of  Carver,  123  Cal.  102,  55  Pac.  770. 

The  Value  of  an  Estate,  for  the  Purpose  of  Calculating  the  Com- 
missions of  the  executor  or  administrator,  is  determined  prima  facie 
by  the  appraisement  contained  in  the  inventory.  The  appraised 
value  is  not  conclusive,  however,  and  if  it  is  questioned,  the  court 


Estate   of    Hayes.  551 

may  institute  an  inquiry  into  the  actual  value:  Estate  of  Carver,  123 
Cal.  102,  55  Pac.  770;  Estate  of  Fernandez,  119  Cal.  579,  51  Pac.  581; 
Noble  V.  Whitten,  38  Wash.  262,  80  Pae.  451;  Estate  of  Mason,  26 
Wash.  259,  66  Pae.  435;  Estate  of  Smith,  18  Wash.  129,  51  Pac.  348; 
Wilbur  V.  Wilbur,  17  Wash.  683,  50  Pac.  589. 


Estate  of  THOMAS  HAYES,  Deceased. 

[No.  4,017;  decided  Nov.  25,  1895.] 

Homestead. — When  Application  is  Made  by  a  Minor  child  of  a  de- 
cedent to  have  a  homestead  set  apart  from  community  property,  the 
surviving  widow  having  died,  and  the  other  children  having  attained 
majority,  without  applying  for  a  homestead,  the  court  must  grant 
the  application  and  set  aside  the  homestead  absolutely,  not  limiting 
it  to  the  period  of  minority  or  otherwise. 

Homestead — Selection  from  Separate  Property, — It  is  only  when  a 
homestead  is  set  apart  from  the  separate  property  of  the  decedent 
that  it  is  required  to  be  for  a  limited  period. 

Homestead — Success  or  to  Eight. — The  right  to  a  probate  homestead 
may  be  lost,  and  there  can  be  no  successor  to  that  right. 

Homestead — How  Far  an  Estate. — The  right  to  have  a  probate 
homestead  set  aside  is  not  an  estate;  it  becomes  such  when  a  decree 
is  made  setting  aside  the  homestead  and  title  then  vests  in  the  bene- 
ficiaries. 

Homestead — Effect  of  Setting  Aside. — When  property  is  set  apart 
as  a  probate  homestead,  the  property  is  then  taken  out  of  the  juris- 
diction of  the  court. 

Homestead. — The  Right  to  a  Probate  Homestead  is  tested  or  con- 
sidered not  as  of  the  date  of  the  death  of  the  decedent  but  as  of  the 
time  of  the  application. 

Courts.— It  is  the  Duty  of  Courts  to  Administer  the  Statute  Law 
as  they  find  it,  and  not  to  account  for  its  incongruities. 

Stafford  &  Stafford,  for  petitioner. 

P.  J.  Mogan,  for  adult  heirs,  contra. 

COFFEY,  J.  This  is  a  petition  to  have  certain  property 
set  aside  for  the  use  and  benefit  of  Agnes  Hayes,  a  minor, 
under  section  1465,  Code  of  Civil  Procedure.  The  facts  are 
briefly  these:  Thomas  Hayes  died  on  September  30,   1884, 


552  Coffey's  Probate  Decisions,  Vol.  1. 

leaving  him  surviving  as  his  only  heirs  his  widow,  Margaret 
Hayes,  who  died  on  May  15,  1885,  and  five  children.  All 
these  children  are  now  over  the  age  of  majority,  except  the 
petitioner  herein. 

Decedent  Thomas  Hayes  left  only  one  piece  of  property, 
which  is  situated  in  San  Francisco.  It  was  community  prop- 
erty, and  it  is  sought  herein  to  have  it  set  aside  as  a  home- 
stead. 

Neither  the  widow  in  her  lifetime  nor  any  of  the  children 
during  their  minority,  except  petitioner,  applied  to  have  a 
homestead  set  aside. 

It  is  asked  that  the  property  be  set  aside  absolutely  to 
Agnes  Hayes. 

Counsel  for  the  other  and  adult  children  oppose  this,  and 
wish  the  decree  to  state  that  the  homestead  be  set  aside  to 
petitioner  during  her  minority. 

1.  It  is  the  right  of  the  minor  to  have,  and  it  is  the  duty 
of  the  court  to  set  aside  absolutely  to  her,  said  homestead, 
without  limitation:  Code  Civ.  Proc,  sec.  1465. 

"When  application  is  made  that  a  homestead  be  set  aside 
under  this  section,  the  court  has  no  discretion  in  the  matter, 
but  must  grant  the  application :  Estate  of  Ballentine,  45  Cal. 
696";  Estate  of  Davis,  69  Cal.  458,  10  Pac.  671. 

2.  When  once  set  aside  it  ceases  to  be  a  part  of  the  assets 
of  the  estate.  It  is  therefore  excluded  from  the  jurisdiction 
of  the  court :  Estate  of  Hardwick,  59  Cal.  292 ;  Estate  of  Bur- 
ton, 63  Cal.  36 ;  Schadt  v.  Heppe,  45  Cal.  433. 

The  homestead  must  be  set  aside  for  the  use  of  the  minor 
children. 

If  the  clause  be  added  ''during  her  minority,"  the  man- 
datory provisions  of  the  section  are  not  followed,  because 
said  clause  is  a  limitation — just  as  much  as  if  this  court  un- 
dertook to  set  it  aside  for  one  year  or  two  years.  It  must 
be  conceded  that  this  could  not  be  done.  Section  1474,  Code 
of  Civil  Procedure,  alone  provides  when  the  court  may  set 
a  homestead  aside  for  a  limited  period,  to  wit:  when  it  is 
taken  from  the  separate  property  of  the  decedent:  Phelan  v. 
Smith,  100  Cal.  170,  34  Pac.  667. 


Estate  of   Hayes.  553 

The  court  say:  "It  is  only  where  a  homestead  is  set  apart 
from  the  separate  property  of  the  deceased  that  it  is  required 
to  be  for  a  limited  period." 

In  that  ease  a  decree  was  upheld  which  set  apart  the  home- 
stead for  the  use  of  decedent's  widow  and  family.  (See  page 
170  of  report.)  See,  also,  on  same  point:  Code  Civ.  Proc, 
sec.  1468;  In  re  Lahiff's  Estate,  86  Cal.  151,  24  Pac.  850; 
Lord  V.  Lord,  65  Cal.  84,  3  Pac.  96 ;  Hutchinson  v.  McNally, 
85  Cal.  619,  24  Pac.  1071 ;  Estate  of  Moore,  96  Cal.  522,  31 
Pac.  584. 

Agnes  Hayes  has  a  right  to  have  a  homestead  set  aside. 
This  right  is  not  an  estate :  Estate  of  Moore,  57  Cal.  443. 

When  the  deceased  mother,  Margaret  Hayes,  and  the  now 
adult  children  failed  to  apply  for  a  homestead — neglected 
to  avail  themselves  of  this  right — they  waived  it;  they  lost  it. 

''If  a  widow  die  before  applying  for  a  probate  homestead, 
any  right  to  apply  which  she  ma}^  have  had  is  gone ;  no  per- 
son succeeds  to  that  right;  no  adult  child  of  hers  can  have 
a  right":  Estate  of  Moore,  supra,  p.  445;  Estate  of  Boland, 
43  Cal.  642. 

A  right  to  a  homestead  is  one  that  may  be  lost,  and  there 
cannot  be  any  such  thing  as  a  successor  to  that  right. 

Again,  all  rights  of  the  widow  as  survivor  of  the  commun- 
ity, all  rights  of  heirship  and  testamentary  disposition,  as 
well  as  all  rights  of  creditors,  are  subordinate  and  subject  to 
this  right  to  have  a  homestead  set  aside  under  section  1465, 
Code  of  Civil  Procedure :  Estate  of  Moore,  57  Cal.  442,  443. 

The  court  say:  "Setting  apart  a  homestead  is  a  part  of 
the  probate  proceeding,  as  much  as  is  the  family  allowance. 
....  The  homestead,  when  set  apart,  is  to  be  set  apart  for 
the  benefit  of  the  widow  and  children.  Every  minor  child 
has  an  interest,  and  has  a  right  to  be  named  in  the  decree": 
Keyes  v.  Cyrus,  100  Cal.  325,  38  Am.  St.  Rep.  296,  34  Pac. 
722. 

The  case  of  Estate  of  Moore,  57  Cal.,  is  directly  affirmed 
in  Phelan  v.  Smith,  100  Cal.  158,  34  Pac.  667.  On  page  164 
it  is  held  that  the  surviving  wife  takes  one-half  of  the  com- 
munity property,  subject  to  the  paj^ment  of  debts,  and  sub- 
ject to  the  exercise  by  the  probate  court  of  the  powers  over 


55-4  Coffey's  Probate  Decisions,  Vol.  1. 

it  vested  in  that  court,  and  qualified  or  subject  to  be  quali- 
fied by  tlie  exercise  of  those  powers. 

What  those  powers  are  the  court  then  proceeds  to  define. 
The  heirs  take  under  section  1384,  Civil  Code,  and  the  widow 
under  section  1402,  Civil  Code,  subject  to  those  powers. 

When  the  proceedings  of  the  probate  court  are  set  in  mo- 
tion for  the  exercise  of  this  right,  viz.,  to  have  a  homestead 
set  aside,  and  a  decree  is  made,  then  the  homestead  becomes 
an  estate,  a  vested  title  in  those  to  whom  it  is  set  aside. 

"And  not  until  such  action  (setting  aside  homestead)  can 
it  be  said  that  any  estate  has  become  vested,  either  at  law  or 
in  equity":  Estate  of  Moore,  57  Cal.  443. 

Setting  apart  a  homestead  vests  the  title  in  the  party  to 
whom  set  apart:  Fealey  v.  Fealey,  104  Cal.  360,  43  Am,  St. 
Rep.  Ill,  38  Pac.  49 ;  Estate  of  Poland,  43  Cal.  640 ;  Sheehy 
V.  Miles,  93  Cal.  288,  28  Pac.  1046;  Estate  of  Schmidt,  94  Cal. 
334,  29  Pac.  714 ;  Mawson  v.  Mawson,  50  Cal.  539 ;  McKinnie 
V.  Shaffer,  74  Cal.  614,  16  Pac.  509. 

When  a  homestead  is  set  apart  under  section  1465,  Code 
of  Civil  Procedure,  the  title  thereto  vests  in  accordance  with 
the  provisions  of  section  1468,  Code  of  Civil  Procedure. 

"The  homestead  is  to  be  set  apart  in  pursuance  of  the  stat- 
ute in  force  at  the  time  when  the  order  is  made,  and  the  in- 
terest therein  which  the  widow  and  the  surviving  child  will 
take  is  to  be  determined  by  the  same  statute":  Sulzberger 
V.  Sulzberger,  50  Cal.  388. 

"The  decree  setting  apart  the  homestead  vested  the  title 
thereto  in  the  minor  children  as  well  as  in  the  mother,  .... 
and  the  application  for  the  homestead,  together  with  the  order 
setting  it  apart,  were  made  under  the  provisions  of  section 
1465,  Code  of  Civil  Procedure,  ....  and  by  the  provisions 
of  section  1468,  when  property  is  thus  set  apart  to  the  use 
of  the  family,  'the  one-half  of  such  property  shall  belong 
to  the  widow  or  surviving  husband,  and  the  remainder  to  the 
child,  or  in  equal  shares  to  the  children,  if  there  be  more  than 
one'  ":  Hoppe  v.  Hoppe,  104  Cal.  94,  37  Pac.  894. 

In  other  words,  the  title  to  land  set  apart  out  of  the  com- 
munity does  not  vest  according  to  the  provisions  of  sections 
1384  or  1402  of  the  Civil  Code.     When  the  right  to  have  a 


Estate    of    Hayes.  555 

homestead  set  apart  under  section  1465  is  applied  for  by 
any  of  the  parties  entitled  thereto,  it  is  the  duty  of  the  court 
to  set  it  aside  absolutely,  if  taken  out  of  the  community  prop- 
erty; and  for  a  limited  period,  if  taken  from  the  separate 
property  of  decedent.  The  property  is  then  out  of  the  juris- 
diction of  the  court.  The  right  to  have  a  homestead  then 
becomes  a  vested  estate. 

The  title  thereto  vests,  then,  absolutely  according  to  the 
provisions  of  1468,  Code  of  Civil  Procedure.  If  all  the  par- 
ties entitled  thereto  lost  this  right  given  under  section  1465, 
then  this  property  would  vest  under  sections  1384  and  1402, 
Civil  Code,  and  not  under  section  1468,  Code  of  Civil  Pro- 
cedure. 

The  title  under  this  section  vests  in  the  party  to  whom  the 
property  is  set  aside  under  section  1465,  except  it  be  dece- 
dent's separate  property. 

If  there  be  no  minor  children,  although  there  may  be  adult 
children,  the  title  no  doubt  vests  in  the  surviving  widow  or 
husband. 

If  there  be  a  widow  and  minor  child  or  children,  the  title 
vests,  one-half  in  the  widow,  and  one-half  in  the  child,  or 
in  the  children,  in  equal  shares. 

This  is  so  though  there  may  be  adult  children.  If  there 
be  only  a  minor  child  or  children,  the  whole  belongs  to  the 
child  or  children. 

The  statute  is  plain.  The  rights  of  the  parties  are  to  be 
tested  or  considered  not  as  of  the  date  of  the  death  of  Thomas 
Hayes,  but  as  of  the  time  of  the  application :  Sheehy  v.  Miles, 
supra. 

If  the  title  to  property  set  apart  as  a  homestead  under 
section  1465,  Code  of  Civil  Procedure,  vests  as  provided  in 
section  1468,  Code  of  Civil  Procedure,  how  can  the  adult 
Hayes  children  acquire  any  interest  in  the  property,  when 
that  section  does  not  give  them  any  ?     Neither  does  the  decree. 

"It  is  our  duty  to  administer  the  statute  law  as  we  find  it. 
and  not  to  account  for  its  incongruities":  Mawson  v.  ^Maw- 
son,  supra. 

Application  granted. 


556  Coffey's  Probate  Decisions,  Vol.  1. 

The  Duty  of  the  Court  to  Set  Apart  a  Homestead  when  a  proper 
application  therefor  is  made  is  imperative.  It  has  no  discretion  to 
refuse  the  application,  but  must  grant  it,  for  the  words  "may  set 
apart,"  as  employed  in  the  statute,  are  construed  "must  set  apart": 
Demartin  v.  Demartin,  85  Cal.  71,  24  Pac.  594;  Tyrrell  v.  Baldwin,  78 
Cal.  470,  21  Pac.  116;  Estate  of  Burton,  63  Cal.  36;  Ballentine's  Es- 
tate, 45  Cal.  696;  Estate  of  Walley,  11  Nev.  260;  Estate  of  Synde- 
gaard,  31  Utah,  490,  88  Pac.  616. 

Minor  Children  are  Entitled  to  the  Benefit  of  a  Probate  Homestead: 
Estate  of  Still,  117  Cal.  509,  49  Pac.  463;  Lies  v.  De  Diablar,  12  Cal. 
327;  Gee  v,  Moore,  14  Cal.  472;  and  the  court  may  set  one  apart  to 
them,  although  they  have  no  living  parent:  Estate  of  Pohlmann,  2 
Cal.  App.  360,  84  Pac.  354.  Their  guardian  may  file  the  petition;  and 
the  fact  that  they  are  temporarily  absent  from  the  state  when  the 
hearing  is  had  does  not  affect  their  rights  nor  the  authority  of  the 
court  to  make  the  proper  order:  Estate  of  Pohlmann,  2  Cal.  App.  360, 
84  Pac.  354,  A  homestead  cannot  be  set  apart  to  minor  children  who 
lived  with  the  decedent,  but  who  are  not  his  children  either  in  fact 
or  by  adoption:  Estate  of  Eomero,  75  Cal.  379,  17  Pac.  434.  And 
children  who  become  of  age  without  making  an  application  for  a 
homestead  lose  their  right:  Estate  of  Hey  wood  (Cal.),  84  Pac.  834; 
Estate  of  Still,  117  Cal.  509,  49  Pac.  463. 


INDEX  TO  THE  NOTES. 


Accounts   of  Administrator, 

jurisdiction  of  equity  to  grant  relief  from  orders  settling  ac- 
counts, 263. 

Acknowledgment. 

of  will  by  testator,  29. 

of  signature  by  witness  to  will,  45. 

Attestation  of  Wills.     See  Wills,  Attestation  and  Witnessing. 

Compensation  of  Executor. 

loss  of  right  to  compensation  by  dereliction  of  duty,  550. 

value  of  estate  for  the  purpose  of  calculating  commissions,  550. 

property  on  which  commissions  may  be  claimed,  214. 

Contempt  of  Court. 

punishment  of  executor  for  refusing  to  comply  with  decree  of 
distribution,   134. 

Counsel  Fees. 

right  of  executor  to  counsel  fees  when  he  himself  is  an  attorney, 
550. 

right  of  executor  to  allowance  for  attorney  fees  in  probate  pro- 
ceedings, 155. 

right  of  administrator  to  counsel  fees  in  procuring  letters,  4.    • 

Distribution. 

jurisdiction  of  equity  to  vacate  decrees  of  distribution,  266. 

compelling  executor  to  obey  decree  of  distribution,  134. 

may  be  had  before  the  expiration  of  time  for  contesting  will,  141. 

Distribution,  Partial. 

persons  entitled  to  petition  for  partial  distribution,  200. 
form  and  contents  of  petition  for  partial  distribution,  200. 

Equity,  Jurisdiction  of  Court  of  Equity  to  Grant  Relief  from  Orders 
in  Probate, 
power  of  equity  courts  in  general, 
vacation   of   decrees  settling  accounts,   263. 
vacation  of  orders  directing  sale  of  property',  265. 
vacation  of  decrees  of  distribution,  266. 
vacation  of  orders  granting  probate  of  wills,  266. 
vacation  of  orders  granting  letters  of  administration,  266. 
limitation  upon  the  right  to  obtain  relief  in  equity,  268, 

(557) 


558  Index  to  the  Notes. 

Executors  and  Administrators. 

jurisdiction   of    equity   to    vacate   appointment    of    administrator, 

260. 
competency  of  married  woman  as  executrix,  95. 
persons  disqualified  to  act,  208. 
right  of  nonresident  surviving  spouse  to  nominate  administrator 

110. 

Expenses  of  Administration. 

traveling  expenses,  allowance  for,  106. 
services  of  bookkeeper,  allowance  for,  107. 

Fraud. 

jurisdiction  of  equity  to  vacate  orders  and  decrees  in  probate  on 
the  ground  of  fraud,  263. 

Funeral  Expenses. 

~    liability  of  husband  for  wife 's  funeral  expenses,  117. 

Guardian  and  Ward. 

jurisdiction   of    equity   to   grant    relief   from   orders   and   decrees 

in  guardianship  proceedings,  263. 
considerations  in  awarding  custody  of  child,  9. 
father's  right  to  custody  of  child,  when  lost,  181. 
wishes  of  child  considered  in  appointing  guardian,  181. 

Holographic  Wills.     See  Wills,  Olographic. 

Homestead. 

duty  of  court  to  set  apart  is  imperative,  556. 

minor  children,  when  are  entitled  to  homestead,  556. 

nature  of  homestead  set  apart  from  separate  estate,  220. 

right  of  surviving  spouse  to  homestead  in  absence  of  children,  219. 

£nsane  Delusions. 

definition  and  general  nature,  250. 
what  constitutes  insane   delusion,  87. 

Intoxication. 

testamentary  capacity  of  persons  addicted  to   the  use  of  intoxi- 
cants, 404,  532. 

Inventory. 

title  to  property,  determination  of,  for  purposes  of  inventory,  212. 

Mistake. 

jurisdiction  of  equity  to  grant  relief  from  orders  and  decrees  in 
probate  on  the  ground  of  mistake,  263. 

Olographic  Wills.     See  Wills,  Olographic. 

Presumption. 

that  testator  intended  to  dispose  of  entire  estate,  150. 


Index  to  the  Notes.  559 

Probate  of  WiU. 

jurisdiction  of  equity  to  grant  relief  from  probate,  266. 

publication  of  notice  of  hearing  of  petition  for  probate,  84. 
Publication. 

of  will  by  testator,  32. 

Sales  of  Real  Property. 

jurisdiction  of  equity  to  vacate  sales,  265. 
rule  of  caveat  emptor,  96. 

Special  Administrator. 

preference  to  persons  entitled  to  letters,  207. 

Undue  Influence. 

evidence  establishing,  251. 
presumption  and  burden  of  proof,  251. 
when  invalidates  will,  251. 

Wills. 

injustice  or  unnaturalness  of  will  as  affecting  its  validity,  532. 

construction  of  conflicting  clauses  in  will,  150. 

presumption   that   testator  intended  to  dispose   of   entire   estate, 

150. 
appointment   of  guardian  as  evidence   of  want  of   testamentary 

capacity,  404. 
acknowledgment  of  will  by  testator,  29. 
subscription  by  testator,  28. 

Wills,  Execution  of  Olographs. 

definition  of  olographs,  432. 

statutory  requirements  must  be  complied  with  in  execution,  433. 

formal  requisites,  434. 

informal  writings,  433. 

directions  for  the  writing  of  a  will,  whether  may  of  themselves 

constitute  olograph,  434. 
letters,  olographs  in  form  of,  434. 

omission  of  statutory  requirements  in  execution  of  olographs,  435. 
wills  olographic  in  part  and  attested  in  part,  436. 
incorporation  of  extrinsic  writings  by  reference,  437. 
date  of  olographs,  necessity  for,  437. 
abbreviations  in  date,  438. 
sufficiency  of  dating,  438. 
place  where  date  must  be  written,  438, 
signature  of  testator,  necessity  for,  439. 
signature  of  testator,  sufficiency  of,  439. 
signature  of  testator,  place  of,  439. 
witnessing  and  attesting,  necessity  for,  441. 
attestation  clause,  effect  of,  442. 
place  where  will  was  lodged  or  found,  442. 


560  Index  to  the  Notes. 

Wills,  Attestation  and  Witnessing. 

object  and  purpose,  attestation,  24. 

olographic  wills,  441. 

subscription   and   attestation   distinguished,   25. 

necessity  of  witnesses,  26. 

number  of  witnesses  required,  26. 

substantial  conformity  with  the  law,  whether  sufficient,  27. 

subscription  by  testator,  28. 

acknowledgment  by  testator,  28. 

necessity  that  subscription  be  before  witnesses,  28. 

sufficiency  of  testator's  acknowledgment,  29. 

request  of  testator  to  witness,  31. 

publication   of  instrument  by  testator,   32. 

declaration  by  testator  of  character  of  instrument,  33. 

necessity  of  signing  attestation  by  witnesses,  36. 

mode  of  subscription  by  witness,  37. 

place  on  will  of  subscription  by  witness,  37. 

time  of  subscription  and  attestation  by  witness,  39. 

presence  of  testator,  necessity  and  purpose,  39. 

presence  of  testator,  what  amounts  to,  39. 

presence  in  case  of  clear  vision,  43. 

presence  in  case  of  obstructed  vision,  43. 

presence  in  case  of  inability  to  look  in  direction,  44. 

position  in  same  or  in  other  room,  presumption  therefrom,  44. 

acknowledgment  of  signature  by  witness  equivalent  to  presence, 

45. 
mutual  presence  of  witnesses,  45. 
knowledge  of  contents  of  will  by  witnesses,  46. 
attestation  clause,  47. 

order  of  execution  by  testator  and  by  witness,  48. 
order  of  publication  and  other  requisites,  50. 
order  of  request  to  witnesses  and   other  requisites,   50. 
mode  of  attestation,  50. 
mode  of  request  to  witnesses,  51. 
mode  of  publication,  51. 
testimony  of  attesting  witnesses,  51. 
evidence   outside   testimony   of  witnesses  to   prove   execution   of 

will,   51. 
opinion  of  witness  as  evidence,  52. 
declaration   of   witness   as   evidence,   53. 
attestation  clause  as  evidence,  53. 
Witnesses  to  Will.     See  Wills,  Attestation  and  Witnessing. 


INDEX. 

ABSENT  HEIRS. 

See  Attorneys,  2. 

ACCOUNTS  OF  ADMINISTRATOR, 

Accounts. — Where  an  '* Exhibit"  and  "Account"  Presented  by  an 
Executor  was  merely  "experimental,"  to  raise  certain  questions  as 
to  previous  acts  of  the  administration,  the  executor  will,  under  in- 
structions as  to  his  rights,  be  ordered  to  render  another  account,  which 
shall   have   the    quality   of   finality. — Estate   of   Fisher,   97. 

An  "Exhibit  and  Account"  Presented  by  an  Executor  does  not 
Operate  as  an  Estoppel  upon  the  hearing  and  settlement  of  a  subse- 
quent account  by  him;  the  items  of  the  first  account  are  impeachable, 
and  the  settlement  of  such  account  does  not  impart  a  dignity  not 
inherently  belonging  to   the   account. — Estate   of  Fisher,  97. 

Executor, — A  Mortgagee  of  Land  Inventoried  in  the  Estate,  under 
a  mortgage  made  by  the  universal  devisee  and  legatee  of  the  testa- 
tor, is  a  party  interested  in  the  estate,  and  entitled  to  be  heard 
upon  the  executor's  accounts,  and  on  any  distribution  of  the  estate. 
Likewise,  a  judgment  debtor  of  such  devisee,  who  has  acquired, 
under  execution  upon  the  judgment,  title  to  a  parcel  of  the  realty 
inventoried  in  the  estate,  is  also  a  party  interested  in  the  estate;  so, 
also,  is  a  mortgagee  of  such  judgment  debtor. — Estate  of  Love,  537. 

Account — Jury  Trial, — An  Account,  as  Such,  is  a  Matter  to  be 
Settled  by  the  Court  without  a  jury, — Estate  of  Traylor,  164. 

See    Expenses    of    Administrations;    Funeral    and    Burial    Expenses; 

Special  Administrators,  2. 
Niate, 

jurisdiction    of    equity   to    grant    relief   from    orders    settling    ac- 
counts, 263. 

ACCUMULATIONS. 

See    Trusts,    2. 

ACKNOWLEDGMENT. 

Note. 

of  will  by  testator,  29. 
of  signature  by  witness  to  will,  45. 
Prob.  Dec,  Vol.  I — 86         (561) 


562  Index. 

ACTIONS  BY  EXECUTOR. 

See  Executors  and  Administrators;  Special  Administrators,  1. 

ADMINISTRATORS. 

See  Executors  and  Administrators. 

APPRAISERS    OF    ESTATE. 

Appraisers — Choice  by  Court. — In  the  opinion  of  this  court,  it  would 
best  subserve  the  interests  of  estates  if  in  all  cases  the  court  actually 
chose  all  the  appraisers,  instead  of  having  the  representatives  of  the 
estate  of  their  counsel  choose  some  of  them. — Estate  of  McDougal, 
450. 

Appraisers. — It  is  the  Duty  of  Appraisers,  in  all  cases  where  their 
labor  extends  over  a  number  of  days,  to  preserve  a  minute  account 
of  their  services. — Estate  of  Shillaber,  120. 

Appraisers. — Where  Compensation  of  Appraisers  has  been" Fixed*  Af- 
ter Notice  to  all  parties  interested,  the  question  will  be  thereafter 
treated  as  res  judicata. — Estate  of  Shillaber,  120. 

ATTESTATION   OF  WILL. 

See  Wills. 

ATTORNEYS. 

1.  Appointment  and  Duty. 

Attorneys — Duty  to  Submit  to  Court. — Among  the  duties  of  an  at- 
torney is  that  of  submission  to  the  court  in  the  exercise  of  a  discre- 
tion not  abused,  without  demur  or  murmur.  He  is  to  advise  and 
counsel  simply,  leaving  the  court,  in  its  own  way,  to  come  to  a  con- 
clusion.— Estate  of  Blythe,  110. 

Attorneys. — The  Probate  Judge  is  the  Guardian  of  all  Decedents' 
Estates;  but  the  law  contemplates  an  aid  in  the  selection  of  a  com- 
petent attorney  to  protect  the  court  against  spurious  claimants,  or 
fraudulent   devises  or  practices   of  any  sort. — Estate  of  Blythe,   110. 

Attorneys. — It  is  the  Duty  of  an  Attorney  Appointed  by  the  Court 
in  the  administration  of  a  decedent's  estate,  as  the  legal  representa- 
tive of  the  heirs,  to  discover  and  demonstrate  to  the  court  the  true 
heir,  and  to  expose  and  denounce  all  pretenders. — Estate  of  Blythe, 
110. 

2.  Appointment  for  Absent  Heirs. 

Attorney  for  Absent  Heirs — Power  to  Appoint. — Under  section  1718, 
Code  of  Civil  Procedure,  the  probate  court;  has  power  to  appoint  an 


Index.  563 

attorney  for  absent  or  unrepresented  heirs  of  a  decedent. — Estate  of 
Blythe,   115. 

Attorney  for  Absent  Heirs — Discretion  in  Appointing. — Although 
the  probate  court  has  power  to  appoint  an  attorney  for  unrepresented 
heirs  of  a  decedent,  the  power  should  be  prudently  and  discreetly  ex- 
ercised, in  the  interests  of  the  estate  and  of  all  concerned.  The  rule 
is,  never  to  make  such  an  appointment  unless  the  necessity  is  mani- 
fest.—Estate  of  Blythe,  115. 

Attorney  for  Absent  Heirs  When  no  Known  Heirs. — The  probate 
court  generally  refrains  from  appointing  an  attorney  for  unrepre- 
sented parties  when  there  are  no  known  heirs;  not  doubting  its  power, 
but  questioning  the  expediency  of  its  exercise  in  such  cases. — Estate 
of   Blythe,    115. 

3.     Compensation  of  Attorney  for  Absent  Heirs. 

Attorney  for  Absent  Heirs — Compensation. — An  attorney  appointed 
to  represent  heirs  is  entitled  to  an  allowance  at  any  time  after  ser- 
vices rendered,  and  during  the  administration.  An  application  for 
such  an  allowance  before  final  settlement  of  the  estate  is  not  prema- 
ture.— Estate  of  Blythe,  115, 

Attorney  for  Absent  Heirs. — The  Compensation  of  an  Attorney  ap- 
pointed by  the  court  to  represent  heirs  must  be  paid  out  of  the  es- 
tate, as  necessary  expenses  of  administration.  Upon  distribution  of 
the  estate  the  attorney's  fee  may  be  charged  against  the  party  rep- 
resented   by    him. — Estate    of    Blythe,    115. 

See   Counsel  Fees. 

BOND. 

See   Sales   by   Administrator. 

CEMETERY  WALL. 

See  Funeral  and  Burial  Expenses. 

CHARITABLE    BEQUESTS. 

Charitable  Bequest — Necessity  of  Naming  Corporation. — A  char- 
itable institution  which  is  made  a  residuary  legatee  need  not  be 
designated  in  the  will  by  its  corporate  name. — Estate  of  Gibson,  9. 

Charitable  Bequest — Evidence  to  Identify  Beneficiary. — If  either 
from  the  will  itself  or  from  extrinsic  evidence  the  object  of  a  char- 
itable bequest  can  be  ascertained,  the  court  will  not  invalidate  the 
gift  or  defeat  the  donor's  intention. — Estate  of  Gibson,  9. 

Charitable  Bequest — Ascertainment  of  Beneficiary.— A  residuary  be- 
quest to  "The  Old  Ladies'  Home,  at  present  near  Rincon  Hill,  at  St. 
Mary's  Hospital,"  is  held  to  have  been  intended  for  the  "Sisters  of 


564  Index. 

Mercy,"  a  corporation  embracing,  as  part  of  its  charitable  design,  the 
"Old   Ladies'   Home.  "—Estate   of    Gibson,   9. 

Charitable  Bequests,  so  Far  as  They  Exceed  One-third  the  dis- 
tributable estate,  are  void. — Estate  of  Gibson,  9. 

CLAIMS  AGAINST  ESTATE. 

A  Claim  Arising  During  the  Lifetime  of  the  Decedent  is  a  matter 
which  may  be  segregated  from  the  account  of  the  executors. — Estate 
of  Traylor,   164. 

Claim. — The  Allowance  of  a  Claim  Against  Decedent  prima  facie 
establishes  its  correctness  and  validity,  and  shifts  the  onus  of  proving 
its  incorrectness  or  invalidity  upon  the  party  contesting  the  same. — 
Estate  of  Traylor,  164. 

Claim. — The  Parties  are  Entitled  to  a  Jury  on  the  Trial  of  a  contest 
which  arose  during  the  lifetime  of  the  deceased,  and  at  the  trial  the 
claim  alone  should  be  submitted,  and  not  as  part  of  an  account  in 
which   it   is   set   forth. — Estate   of   Traylor,    164. 

Claim — Jury  Trial. — The  Allowance  of  a  Claim  does  not  interfere 
with  the  question  of  the  right  to  a  trial  by  jury. — Estate  of  Traylor, 
164. 

CODICILS. 

See  Wills,   12. 

COLLECTION  OF  ASSETS. 

See   Executors   and   Administrators,    5. 

COMPENSATION  OF  EXECUTORS. 

1.  When   Fixed   by  Will. 

Executor — Compensation  Fixed  by  Will. — When  an  estate  is  solvent, 
the  compensation  of  the  executor,  fixed  by  the  will  in  Heu  of  stat- 
utory commissions,  should  be  paid  as  "expenses  of  administration." 
Estate  of  Gibson,  9. 

2.  For   Legal   Services  Rendered   by  Himself. 

Executor — Compensation  for  Legal  Services  Rendered  by  Himself. — 
Where  an  executor  is  himself  an  attorney,  he  cannot  claim  extra 
compensation  for  the  use  of  his  legal  knowledge  in  administering 
his  testator's  estate. — Estate  of  Love,  537. 

3.  Commissions  in  General. 

An  Executor  can  be  Allowed  Commissions  only  upon  the  amount 
the  estate  accounted  for  by  him;  and  he  cannot  be  said  to  have 
accounted  for  property  as  part  of  the  estate  of  his  testator,  to  which 


Index.  565 

it  has  judicially  been  determined  that  the  estate  has  no  title. — Estate 
of  Eicaud,  212. 

Executor. — An  Item  for  Commissions  of  an  Executor,  found  in  an 
annual  account  by  him,  will  be  disallowed.  Allowance  of  an  exec- 
utor's statutory  commissions  is  authorized  only  upon  settlement  of 
his  final  account   in  the   administration. — Estate   of   Shillaber,   120. 

Executor — Commissions  When  Valua  of  Estate  Disputed. — Where 
an  executor  claims  commissions  on  the  appraised  value  of  the  estate, 
which  value  is  disputed,  his  commissions  should  be  based  on  the  true 
value  of  the  property  as  proved  by  experts  on  the  hearing  of  his 
account. — Estate  of  Love,  537. 

Executor — Commissions. — Where  a  Bank  Loaned  Money  to  a  uni- 
versal devisee  on  the  executor's  representation  that  a  speedy  distri- 
bution could  be  had  and  he  would  obtain  it,  and  the  executor  filed 
a  worthless  petition  therefor,  he  is  estopped  from  claiming  commis- 
sions as  against  the  bank. — Estate  of  Love,  537. 

4.     Loss  of  Eight  to  Compensation. 

Executor. — An  Executor's  Right  to  Commissions,  given  by  the 
statute,  is  absolute;  neglect  of  duty,  or  delay  in  closing  the  adminis- 
tration, will  not  take  it  away. — Estate  of  Love,  537. 

Executor — Commissions. — A  Quitclaim  of  All  the  Executor's  In- 
terest in  his  decedent's  property  will  not  operate  or  be  construed  as 
a  waiver  of  commissions. — Estate   of   Love,   537. 

Executor — Renunciation  of  Compensation. — The  fact  that  an  ex- 
ecutor at  one  time  entertained  and  expressed  an  intention  to  renounce 
his  commissions  does  not  bar  his  right  to  claim  them  if  he  has  made 
no  renunciation  in  writing  nor  made  any  agreement  prior  to  ap- 
pointment to  waive  compensation. — Estate  of  Murphy,  12. 

Note. 

loss  of  right  to  compensation  by  dereliction  of  duty,  550. 

value  of  estate  for  the  purpose  of  calculating  commissions,  550. 

property  on  which  commissions  may  be  claimed,  214. 

CONSTRUCTION   OF   WILLS. 
See  Wills,  6. 

CONTEMPT  OF  COURT. 

See   Distribution,    2. 

Note. 

punishment   of   executor   for   refusing   to   comply   with   decree   of 
distribution,  134. 


566  Index. 


CONTEST    OF   WILL. 

Will  Contest — Burden  of  Proof. — One  who  contests  the  probate  of 
a  will  has  the  burden  of  proof  to  establish  the  ground  of  contest. — 
Estate  of  Solomon,  85. 

CONTRACTS  OF  DECEDENT. 

See  Executors  and   Administrators,  5. 

CONVERSION. 

Equitable  Conversion — ^Whether  Takes  Place  by  Implication. — Equi- 
table conversion  may  take  place  by  implication  as  well  as  by  express 
words. — Estate  of  Skae,  405. 

Equitable  Conversion — When  Worked  by  Implication. — If  a  will  au- 
thorizes the  executors  to  sell  real  estate,  and  the  general  scheme  of 
the  testament  manifests  an  intention  on  the  part  of  the  testator 
that  there  shall  be  an  equitable  conversion  of  the  realty  into  per- 
sonal property,  such  a  conversion  will  take  place,  although  the  power 
to  sell  is  not  imperative. — Estate  of  Skae,  405. 

COSTS. 

A  Cost  Bill  is  not  Filed,  if  not  delivered  to  the  clerk  nor  received 
by  him. — Estate  of  McGovern,  150. 

Where  a  Cost  Bill  is  Left  in  the  Clerk's  Office  About  One  Hour 
After  the  Time  specified  by  law  for  the  closing  of  the  office,  there 
being  no  person  present  authorized  to  receive  and  file  it,  the  paper 
is  not  filed;  and  if  the  date  of  the  alleged  filing  is  the  last  day 
allowed  by  the  statute  for  filing  the  bill,  a  motion  to  strike  it  out 
should  be  granted. — Estate  of  McGovern,  150. 

COSTS  OF  APPEAL. 

See    Expenses    of    Administration. 

COUNSEL    FEES. 
1.     Right    of    Executor    to    Allowance    for    Counsel    Fees. 

Executors — Right  to  Counsel  Fees. — The  trust  imposed  upon  an  ex- 
ecutor makes  the  probate  of  the  will  a  part  of  his  duty,  for  which  he 
may  employ  attorneys  and  charge  their  fees  against  the  estate. — 
Estate  of  Chittenden,   1. 

Executors — Right  to  Counsel  Fees  in  Procuring  Letters. — Counsel 
fees  incurred  by  an  executor  in  applying  for  letters  are  a  proper 
charge  against  the  estate,  notwithstanding  he  renounces  his  trust  be- 
fore  letters   are    issued. — Estate    of    Chittenden,    1. 


Index.  567 

An  Executor  is  Entitled  to  the  Assistance  of  Counsel,  Even  When 
He  is  Himself  an  Attorney;  and  he  will  be  granted  an  allowance  for 
counsel  employed  by  him;  but  in  dealing  with  the  question,  the  court 
will  be  mindful  of  the  fact  that  the  executor  is  an  attorney  of  ability. 
Estate  of  Shillaber,  101,  120. 

The  Administrator  was  Allowed  Counsel  Fees,  Although  His  Coun- 
sel was  His  Law  Partner,  in  the  case  at  bar,  it  being  proved  that  in 
this  service  such  counsel  was  not  the  business  partner  of  the  admin- 
istrator.—Estate   of  Shillaber,   101,  120. 

Counsel  Fees. — There  is  no  Authority  in  the  Probate  Court  to  allow 
an  attorney  appointed  by  the  court  under  section  1718,  Code  of  Civil 
Procedure,  compensation  for  services  performed  in  a  suit  brought  by 
the  executor.  The  attorney's  remuneration  must  be  restricted  to  pro- 
ceedings before  the  court  of  administration. — Estate  of  Fisher,  97. 

Executors— Right  to  Counsel. — An  executor,  acting  in  good  faith, 
is  entitled  to  aid  of  counsel  in  all  litgation  concerning  the  estate. 
Estate  of  Fisher,  97. 

Executors — Allowance  for  Counsel  Fees. — ^It  being  an  executor's 
duty  to  defend  or  prosecute  for  the  estate  in  all  matters  where  in 
good  faith  he  believes  it  necessary,  he  should  be  reimbursed  though 
the  suit  be  lost. — Estate  of  Fisher,  97. 

Attorney. — An  Administratrix  has  Power  to  Employ  an  Attorney 
to  institute  proceedings  to  recover  damages  for  the  death  of  her 
intestate. — Estate    of   Lund,    152. 

Claim  for  Counsel  Fees — Jury  Trial. — A  claim  of  an  attorney  for 
fees  for  services  rendered  an  estate  is  an  expense  of  administration,  and 
is  not  a  proper  matter  for  trial  by  jury.  But  the  claim  of  an  attor- 
ney for  fees  for  services  rendered  to  a  decedent  during  his  lifetime 
differs  materially  from  a  claim  for  services  rendered  to  the  estate. — 
Estate  of  Traylor,   164. 

Attorney — Compensation. — An  Attorney  Who  Renders  Services 
for  the  Benefit  of  an  estate,  at  the  request  of  the  administratrix 
thereof  is  entitled  to  reasonable  compensation  therefor.  The  pro- 
bate department  is  the  proper  forum  in  which  to  present  his  claim 
for  such  services;  they  are  "expenses  of  administration,"  and  the 
probate  department  has  exclusive  jurisdiction  to  adjust  and  enforce 
such   demands. — Estate    of   Lund,    152. 

Attorney — Contingent  Fee. — An  Administratrix  has  no  Power  to 
Make  a  Contract  with  an  Attorney  for  the  payment  of  a  contingent 
fee  to  him  out  of  the  assets  of  the  estate.  But  the  employment  of 
an  attorney  to  perform  services,  and  a  promise  to  pay  him  a  contin- 
gent fee  for  such  services,  are  separable.  The  retainer  of  the  attor- 
ney, and  rendering  of  services  by  him  in  pursuance  of  such  retainer, 
may  be  considered  by  the  court  apart  from  the  promise  to  pay  a 
contingent   fee,    and    the    compensation    will    be    adjudged    according 


568  Index. 

to  the  proof  of  the  reasonable  value  of  the  services.  An  attorney 
accepting  employment  and  rendering  services,  under  such  circum- 
stances, must  rely  upon  the  subsequent  action  of  the  court  in  ad- 
judging proper  compensation,  and  consents  to  perform  his  duty  with- 
out other  compensation  than  may  so  be  allowed. — Estate  of  Lund,  152. 

2.    Amount  of  Fees. 

Counsel  Fees. — In  the  Consideration  of  Applications  for  Fees  by  at- 
torneys appointed  by  the  court,  the  appointee  and  applicant  should 
be  especially  indulgent  to  the  court  which  has  chosen  him  in  its  en- 
deavor to  properly  adjust  the  rights  of  the  applicant.  The  duty  of 
submission  to  the  court,  stated  in  the  second  headnote  above,  is  es- 
pecially applicable  to  these  attorneys. — Estate  of  Blythe,  110. 

Counsel  Fees. — Whether  an  Estate  in  Probate  is  Large  or  Small, 
whether  it  may  escheat  or  not,  or  go  to  claimants  then  unknown,  the 
principles  of  law  governing  the  compensation  of  an  attorney  are  the 
same,  and  should  be  applied  rigorously  by  the  court. — Estate  of 
Blythe,   110. 

Counsel  Fees. — In  Fixing  Attorneys'  Fees  There  are  no  Established 
Rules;  the  character  and  circumstances  of  every  case,  founded  upon 
general  principles  of  justice,  and  the  reasonable  value  of  a  capable 
attorney's  services,  must  furnish  the  rule. — Estate  of  Blythe,  110. 

Counsel  Fees. — In  Determining  the  Compensation  of  an  Attorney  it 
has  been  the  practice,  and  has  become  the  rule  of  the  court,  that  ex- 
pert testimony  as  to  the  value  of  the  services  will  not  be  considered. 
The  judge  will  determine  the  matter  for  himself. — Estate  of  Blythe, 
110. 

Counsel  Fees. — The  Difficulty  and  Delicacy  of  the  Court's  Duty,  in 
adjusting  applications  of  attorneys  for  allowance  of  fees,  expressed. 
Estate  of  Blythe,   110. 

Executors. — The  Fees  of  Attorneys  Employed  by  an  Executor  in 
probating  the  will,  being  a  charge  against  the  testator 's  estate,  can  be 
fixed  only  by  the  probate  court. — Estate  of  Chittenden,   1. 

See  Attorneys,  3;   Executors  and  Administrators,  2. 

Note. 

right  of  executor  to  counsel  fees  when  he  himself  is  an  attorney, 
550. 

right  of  executor  to  allowance  for  attorney  fees  in  probate  pro- 
ceedings, 155. 

right   of  administrator  to   counsel  fees  in  procuring  letters,  4. 

COURTS. 

Courts. — It  is  the  Duty  of  Courts  to  Administer  the  Statute  Law 
as  they  find  it,  and  not  to  account  for  its  incongruities. — Estate  of 
Hayes,  551. 


Index.  569 

custody  of  child. 

See   Guardian  and  Ward. 

DEBTS. 

See    Claims    Against    Estate;    Expenses    of    Administration. 

DECREE    OF    DISTRIBUTION. 

See    Distribution. 

DEFINITIONS. 

See    Words    and   Phrases. 

DELUSIONS. 

See   Insanity   and   Insane   Delusions. 

DESCENT. 

See    Succession. 

DETECTIVE    SERVICE. 

See  Special  Administrators,  2. 

DEVISEES. 

See    Legatees    and    Devisees. 

DISTRIBUTION. 

Note. 

jurisdiction  of  equity  to  vacate  decrees  of  distribution,  2G6. 

compelling  executor  to  obey  decree  of  distribution,  134. 

may  be  had  before  the  expiration  of  time  for  contesting  will,  1-11. 

DISTRIBUTION    OF    ESTATE. 
1.    In  General. 

A  Distribution  of  a  Partnership  Interest,  owned  by  the  estate,  may 
be  ordered  without  a  previous  accounting  by  the  surviving  partners 
to    the    administratrix. — Estate   of   Wallace,    118. 

Distribution  Disposes  of  the  Subject  Matter,  and  Nothing  Remains 
within  the  jurisdiction  of  the  court,  except  to  compel  obedience  to 
its  decree,  when  necessary. — Estate  of  Wallace,  118. 

An  Administratrix  must  fee  Held  to  have  Concurred,  as  such,  in  a 
request  made  by  her  in  her  own  behalf  as  widow  and  as  guardian  of 
a  minor   heir. — Estate  of  Wallace,   118. 

An  Administratrix,  as  Such,  is  Estopped  from  Attacking  a  Decree 
Made  upon  Her  Request,  as  widow  and  as  guardian  of  a  minor  heir, 
and  concurred  in  by  her  as  administratrix. — Estate  of  Wallace,  118. 


570  Index. 

2.  Failure  of  Executor  to  Comply  With  Decree. 

Executor — Failure  to  Comply  with  Decree  of  DistrilDution — An  exec- 
utor who  refuses  to  make  payment  to  distributees  in  accordance 
with  the  decree  of  distribution  is  punishable  for  contempt,  and  he 
cannot  plead  inability  to  pay,  when  his  account  on  file  shows  the 
contrary. — Estate  of  Treweek,  132. 

3.  Partial  Distribution. 

Partial  Distribution — Time  for  Making. — An  application  for  partial 
distribution  of  a  decedent's  estate  in  course  of  administration  may 
be  made  at  any  time  after  the  period  of  administration  mentioned  in 
the  statute,  upon  allegations  showing  the  existence  of  the  conditions 
and  circumstances  required  by  the  statute. — Estate  of  Lynch,  140. 

Partial  Distribution — Time  for  Making. — The  rule  prescribed  by  the 
statute,  as  to  whom  and  under  what  circumstances  a  partial  distrib- 
ution of  a  decedent's  estate  may  be  had,  is  the  same  whether  the 
decedent  left  a  will,  or  died  intestate.  And  a  petition  for  the  partial 
distribution  of  a  testate's  estate  is  not  premature  merely  because  the 
year  given  by  the  statute,  within  which  a  contest  to  the  probate  of 
the  decedent 's  will  may  be  filed,  has  not  elapsed. — Estate  of  Lynch, 
140. 

Partial  Distribution — Petition  by  Executrix. — A  party  is  not  in- 
capacitated to  apply  for  partial  distribution  of  a  decedent's  estate 
because  she  is  an  executrix  of  his  will. — Estate  of  Donahue,   186. 

Partial  Distribution. — Assuming  that  the  Question  of  Giving  a  Bond 
upon  partial  distribution  can  be  considered  upon  demurrer  to  an  ap- 
plication for  partial  distribution,  and  the  objection  taken  that  the 
party  to  give  the  bond  is  both  distributee  and  executrix — obligor 
and  obligee;  the  answer  is  that  the  law  is  so  written. — Estate  of 
Donahue,  186. 

Partial  Distribution — Petition  by  Administrator. — The  Practice  of 
the  Court  since  its  institution,  in  recognizing  the  right  of  an  heir  or 
devisee,  although  he  is  also  the  representative  of  the  estate,  to  apply 
for  and  have  partial  distribution,  referred  to  and  cases  cited. — Estate 
of    Donahue,    186. 

Partial  Distribution — Petition. — Various  Grounds  of  Special  De- 
murrers for  ambiguity,  presented  to  a  petition  for  partial  distribution 
of  a  decedent's  estate,  are  overruled  in  this  case. — Estate  of  Dona- 
hue, 186. 

Decedent's  Widow  AppUed  for  Partial  Distribution  of  the  Estate, 
alleging  that  "a  portion"  of  it  was  separate  property,  and  "the 
other  portion"  community  property,  particularly  describing  and 
claiming  the  portion  alleged  to  be  community.  Demurrer,  on  the 
ground  that  it  appeared  from  the  petition  to  be  necessary  to  ascer- 
tain and  determine  the  title  to  the  property  asked  to  be  distributed, 
and  that   title   could   only   be   determined   upon   final   distribution,   or 


Index,  571 

under  section  1664,  Code  of  Civil  Procedure,  overruled.  (See  Es- 
tate of  Jessup,  81  Cal.  408,  21  Pae.  976,  22  Pac.  742,  1028,  6  L.  E. 
A.   594,   affirming   Coffey,  J.) — Estate   of  Donahue,   186. 

Partial  Distribution — Petition  by  Widow. — Where  one  petitions  for 
partial  distribution  of  an  estate,  and  alleges  that  she  is  the  widow 
of  deceased,  and  is  desirous  of  having  her  share  of  the  community 
property  therein  described  assigned  and  distributed  to  her,  it  suffi- 
ciently appears  that  the  petitioner  is  an  heir.  As  widow  she  is 
included  in  the  statutory  term  "heir." — Estate  of  Donohue,  186. 

Partial  Distribution — Sufficiency  of  Petition  as  Showing  Title  and 
Seisin. — Where  the  widow  of  a  decedent  petitions  to  have  her  share 
of  the  community  property  assigned  to  her,  by  way  of  partial  dis- 
tribution, alleging  that  certain  property  described  in  the  inventory 
of  the  estate,  and  then  particularly  describing  it,  was  conveyed  to 
decedent  by  a  particular  person  named,  and  on  a  particular  date 
mentioned,  such  averments  of  title  in  the  decedent  and  seisin  at  the 
time  of  his  death,  are  sufficient. — Estate  of  Donahue,   186. 

Partial  Distribution — Sufficiency  of  Petition  as  Showing  Community 
Property. — An  allegation  in  the  petition  of  a  widow  to  have  her 
share  of  the  community  property  assigned  to  her  by  way  of  partial 
distribution,  that  the  property  (describing  it)  "was  acquired  by 
the  said  deceased  after  his  marriage  with  your  petitioner,  to  wit" 
on  a  day  named,  "and  was  not  acquired  by  gift,  bequest,  devise  or 
descent;  but,  on  the  contrary,  by  purchase  for  a  valuable  considera- 
tion, and  as  she  is  advised  and  insists  was,  and  is  the  community 
property, ' '  is  sufficient,  as  a  statement  of-  the  character  of  the  prop- 
erty. It  is  sufficient  treating  the  petition  as  a  pleading;  but  es- 
pecially so  as  an  application  for  partial  distribution. — Estate  of 
Donohue,  186. 

Partial  Distribution — Informality  of  Petition. — A  petition  for  par- 
tial distribution  of  a  decedent's  estate  should  not  be  treated  as 
severely  as  a  common-law  pleading.  All  that  it  need  show  is  that 
the  person  applying  has  the  status  of  an  applicant  as  described  in 
the  statute,  and  that  the  administration  of  the  estate  is  in  a  sufficient 
state  of  forwardness  to  authorize  a  distribution. — Estate  of  Donohue, 
180. 

Partial  Distribution. — Whenever  the  Administration  of  an  Estate 
has  Advanced  so  far  as  to  be  in  a  sufficient  state  of  forwardness  to  au- 
thorize distribution,  it  is  the  duty  of  the  court,  upon  petition  of  any 
party  interested,  to  proceed  to  a  partial  distribution,  and  for  that 
purpose  to  make  the  necessary  investigation  of  facts. — Estate  of 
Donahue,  186. 

DISTRIBUTION,  PARTIAL. 

Note. 

persons  entitled  to  petition  for  partial  distribution,  200. 
form  and  contents  of  petition  for  partial  distribution,  200. 


572  Index. 


EQUITABLE   CONVERSION. 

Seo   Conversion. 

EQUITY  RELIEF  IN  FROM  ORDERS  IN  PROBATE. 

Note. 

power  of  equity  courts  in  general, 
vacation  of  decrees  settling  accounts,  263. 
vacation  of  orders  directing  sale  of  property,  265. 
vacation  of  decrees  of  distribution,  266. 
vacation  of  orders  granting  probate  of  wills,  266. 
vacation  of  orders  granting  letters  of  administration,  266. 
limitation  upon  the  right  to  obtain  relief  in  equity,  268. 

EVIDENCE. 

1.  In  General. 

Evidence — Inference  from  Failure  to  Produce. — The  failure  of  a 
party  to  produce  evidence  within  his  power  to  produce  is  a  circum- 
stance to  be  taken  against  him. — Guardianship  of  Danneker,  4. 

Evidence. — It  would  "be  Contrary  to  all  Rules  of  Evidence  to  Ac- 
cept Testimony  that  lacks  clearness  and  certainty,  and  that  is  with- 
out corroboration,  as  against  adverse  evidence,  positive  and  par- 
ticular in  its  nature,  and  without  successful  assailment,  and  going  to 
the   main   fact   in   issue   itself. — Estate    of   McDougal,   456. 

Evidence. — Entries  Made  in  an  Account-book  at  the  Request  of  One 
Person  by  another,  as  to  the  ownership  of  property,  are  of  no  more 
value  than  any  other  verbal  admissions  which  the  writer  orally  tes- 
tified to,  which  ought  to  be  received  with  great  caution.  An  entry 
in  favor  and  not  against  the  interest  of  a  party  dictating  it  is  dis- 
entitled to  consideration  on  that  account.  And  a  party  cannot  be 
affected  by  the  declaration  or  entry  of  a  party  in  his  own  favor, 
made  without  the  cognition  or  consent  of  the  former.  Evidence  of 
such  character,  even  when  admitted  without  objection,  cannot  be 
too  carefully  scrutinized,  for  it  is  in  all  cases  the  most  dangerous 
species  of  evidence  that  can  be  admitted  in  a  court  of  justice,  and 
the  most  liable  to  abuse. — Estate  of  McDougal,  456. 

2.  Expert  Testimony. 

Expert  Evidence — Its  Nature  and  Value. — Expert  evidence  is  really 
an  argument  of  the  expert  to  the  court,  and  is  valuable  only  with 
regard  to  the  proof  of  the  facts  and  the  validity  of  the  reasons  ad- 
vanced  for   the   conclusions. — Estate   of    Scott,   271. 

See  Witnesses. 


Index.  573 

EXECUTORS   AND   ADMINISTRATORS. 

1.  Distinction  Between. 

Executors. — There  is  a  Distinction  Between  Executors  and  Admin- 
istrators. An  executor  is  appointed  by  the  will  to  carry  out  its  pro- 
visions and  the  wishes  of  the  testator,  who  burdens  the  executor  with 
the  trusts  created  by  the  will  and  charges  his  estate  with  the  ex- 
penses necessary  to  carry  out  his  views  as  expressed  in  his  will;  but 
an  administrator  has  no  trust  imposed  upon  him  by  the  decedent,  and 
he  looks  solely  to  the  statute  for  his  duties,  authority,  and  compensa- 
tion.— Estate  of  Chittenden,  1. 

2.  Appointment   and   Issuance   of  Letters — Persons   Qualified. 

Letters  of  Administration — Wlio  may  Apply  for. — The  person  to 
whom  letters  of  administration  are  issued  must  apply  by  his  own 
petition,  signed  by  himself  or  his  counsel;  a  petition  by  an  heir 
for  the  appointment  of  another  person  is  insufl&eient,  and  an  order 
appointing  an  administrator  on  such  petition  must  fall.  Such  pe- 
tition is  in  effect  no  petition,  and  is  not  subject  to  amendment. — 
Estate  of  Eiddle,  215. 

Administrator. — A  Surviving  Wife  has  the  Right  to  Nominate  an 
administrator  of  her  husband's  estate,  although  she  has  been  removed 
from  her  position  as  executrix  of  his  will  because  of  her  permanent 
removal  from    the    state. — Estate    of   McDougal,    109. 

Appointment  of  Administratrix. — When  a  Widow  Marries,  she  ceases 
to  be  the  widow  of  her  first  husband;  and  then  being  a  married 
woman,  she  loses  her  right  to  administer  his  estate,  or  to  nominate 
an   administrator. — Estate   of   Pickett,   93. 

Letters  of  Administration. — The  Order  in  Which  Letters  of  admin- 
istration are  granted  is  a  matter  of  statutory  regulation,  and  to  the 
statute  the  court  must  resort  for  decision. — Estate   of  Lane,  88. 

Letters  of  Administration — Next  of  Kin. — Where  a  man  dies  intes- 
tate, and  subsequently  his  widow  dies  before  letters  are  taken  out 
on  his  estate,  her  niece  is  not  entitled  to  administer  his  estate  as 
next  of  kin,  for  she  was  not  such  when  he  died. — Estate  of  Lane,  88. 

Executor. — The  Unfriendliness  of  an  Executrix  Toward  a  Mother, 
who  is  striving  to  obtain  what  she  can  by  legal  means  for  her  chil- 
dren, will  not  justify  the  court  in  adjudging  the  executrix  incompe- 
tent.— Estate  of  McDougal,  456. 

3.  Removal  and  Revocation  of  Letters. 

Letters  of  Administration — Revocation  in  Favor  of  Person  having 
Prior  Right. — Where  letters  of  administration  have  been  granted  to 
a  person  who  is  not  entitled  to  them  in  his  own  right,  and  who  was 
not   nominated   by   the   person   entitled,   they   will   be   revoked   upon 


574  Index.         , 

the  application  of  the  person  entitled  to  letters. — Estate  of  Eothschild, 
167. 

Revocation  of  Probate  Because  Obtained  by  Fraud. — The  superior 
court,  sitting  in  probate,  has  no  jurisdiction  to  revoke  the  probate 
of  a  will  because  procured  by  fraud  or  artifice;  the  remedy  of  the 
party  aggrieved  is  by  independent  suit  in  equity. — Estate  of  Mc- 
Laughlin, 257. 

Executor — Removal  for  Fraud. — The  evidence  reviewed,  and  the 
charge  of  fraud  against  the  executrix  held  not  proved.  The  obliga- 
tion of  proving  any  fact  lies  upon  the  party  who  substantially  as- 
serts the  affirmative  of  the  issue,  and  a  court  is  not  justified  in  plac- 
ing upon  a  person  charged  with  fraud  the  onus  of  showing  that  she 
is  guiltless;  on  the  contrary,  it  is  incumbent  upon  the  person  mak- 
ing a  charge  of  fraud  to  maintain  it  by  a  preponderance  of  proof. 
Estate  of  McDougal,  456. 

4.    Powers,  Duties  and  Liabilities. 

Executors — Duty  to  Collect  Assets. — It  is  not  only  the  duty  of  an 
executor  to  seek  to  recover  assets  of  the  estate,  but  should  he  forbear 
the  endeavor  he  would  be  liable  as  for  malfeasance  or  nonfeasance. — 
Estate  of  Fisher,  97. 

Executors — Good  Faith  in  Bringing  Action. — Where  a  suit  brought 
by  an  executor  presented  issues  of  a  "serious"  and  "difficult"  char- 
acter, and  occupied  many  days  in  trial,  a  nonsuit  being  refused,  it 
must  have  afforded  grounds  to  the  executor's  judgment  in  its  institu- 
tion   and    prosecution. — Estate    of    Fisher,    97. 

Administrator — Liability  for  Rents  When  He  Places  Devisee  in  Pos- 
session.— In  the  face  of  objection  an  administrator  will  be  held  ac- 
countable for  the  rental  value  of  realty  specifically  devised  by  his 
testator,  which  he  has  placed  in  the  possession  of  the  devisee.  But 
where  the  premises  contained  certain  articles  of  personalty,  which 
the  testator  directed  to  have  left  there  and  which  the  administrator 
claimed  should  be  cared  for,  the  court  will  take  into  account  the  care 
bestowed  upon  the  property  by  the  devisee. — Estate  of  Shillaber,  101. 

Executor — Liability  for  Interest  on  Funds. — An  executor  who  with- 
draws funds  from  the  capital  account  of  a  firm  of  which  the  testator 
was  a  member,  and  permits  them  to  lie  idle  in  a  bank,  is  chargeable 
with   interest  thereon. — Estate   of  Murphy,   12. 

Executor — Duty  to  Account  for  Assets. — It  is  the  duty  of  an  exec- 
utrix to  make  a  showing  to  the  court  of  the  disposition  of  the  dif- 
ference between  what  the  estate  is  prima  facie  entitled  to,  and  what 
it  is  claimed  was  the  whole  amount  received  by  her. — Estate  of  Mc- 
Dougal, 456. 

Executor — Delay  in  Settling  Estate. — Negligence  was  not,  under 
the  peculiar  circumstances  of  the  case,  held  imputable  to  the  executor, 


Index.  575 

notwithstanding  the  administration  of  the  estate  was  not  closed  for 
nearly  sixteen  years. — Estate  of  Love,  537. 

Executor. — Where  an  Executor  Allowed  Judgment  to  Go  Against 
Him  for  realty  which  had  come  into  his  possession,  he  having  acted 
in  good  faith,  he  should  not  be  charged  with  the  value  of  the  lot, 
but  only  for  an  amount  which  he  received  in  consideration  of  his 
consent  to   the  judgment. — Estate  of  Love,  537. 

Executor. — Where  Property  of  an  Estate  has  been  Taken  by  the 
City  for  a  Park,  the  executor  should  not  be  charged  with  the  value 
of  the  land,  but  only  with  the  amount  received  by  him  from  such 
source. — Estate  of  Love,  537. 

Executor — Performance  of  Decedent's  Contract. — Where  an  execu- 
tor carries  out  the  contract  of  his  decedent  to  perform  legal  services, 
the  money  received  therefor  should  belong  in  part  to  the  estate  and 
in  part  to  the  executor. — Estate  of  Love,  537. 

See  Compensation  of  Executors;  Special  Administrators,  2. 

Note. 

jurisdiction    of    equity   to    vacate    appointment    of    administrator, 

260. 
competency  of  married  woman  as  executrix,  95, 
persons  disqualified  to  act,  208. 

right  of  nonresident  surviving  spouse  to  nominate  administrator, 
110. 

EXHIBITS. 
See  Accounts   of   Executor. 

EXPENSES   OF   ADMINISTRATION   AND   THEIR  ALLOWANCE. 

Administration — Extravagant  Costs. — The  Impression,  Widely  Preva- 
lent, of  the  extravagant  cost  of  administering  estates,  referred  to  and 
the  court's  position  stated. — Estate  of  Blythe,  110. 

Executor — Insurance — Proof  of  Loss. — It  is  an  executor's  duty  to 
prepare  proofs  of  loss  in  case  of  a  destruction  of  insured  property 
and  hence  he  will  not  be  allowed  a  charge  incurred  for  having  such 
proofs  prepared. — Estate  of  Shillaber,  120. 

Account  of  Executor — Objections  to  Expense  of  Lease. — Upon  the 
settlement  of  the  account  of  an  executor  containing  items  of  ex- 
penditures in  executiug  a  lease  under  authority  of  the  will,  which 
items  the  heirs  contest  on  the  ground  of  the  invalidity  of  the  lease, 
the  court  will  not  consider  the  lease  invalid. — Estate  of  Murphy,  12. 

Accouiit  of  Executor — Expense  of  Repairs. — Where  an  executor,  as 
an  inducement  to  the  heirs  to  join  with  him  in  the  execution  of  a 
lease,  represents  to  them  that  the  expense  of  alterations  and  fitting  up 
for  the  tenant  will  not  exceed  a  certain  sum,  he  cannot  be  allowed 
for  expenditures  beyond  that  sum. — Estate  of  Murphy,  12, 


576  Index. 

Account  of  Executor. — Expenditures  that  do  not  Add  to  the  Bental 
Value  of  premises  to  be  leased,  and  injudiciously  made,  should  be 
disallowed. — Estate  of   Murphy,   12. 

Executor. — Where  Items  in  an  Executor's  Account  are  payments 
arising  out  of  mortgages  given  by  the  universal  devisee  and  legatee, 
they  should  nevertheless  be  allowed,  where  the  moneys  were  devoted 
to  the  maintenance  of  the  widow  and  family,  and  paid  at  her  re- 
quest, she  being  universal  devisee. — Estate  of  Love,  537. 

Executor. — Items  In  an  Executor's  Account  of  expense  for  ab- 
stracts of  title  and  driving  squatters  off  of  realty  should  be  allowed, 
when  paid  for  the  widow's  benefit  and  at  her  request,  she  being  the 
universal    devisee.^ — Estate   of   Love,   537. 

Executor. — Items  in  an  Executor's  Account  of  Expense  of  flowers 
for  grave,  of  insuring  personalty  never  in  his  possession,  examining 
tax  lists  and  recording  a  deed  to  a  legatee,  should  be  disallowed. — 
Estate  of  Love,  537. 

Executor. — Items  of  Expense  in  an  Executor's  Account  for  printing 
a  brief,  the  amount  or  payees  not  being  shown;  interest  on  a  note 
made  by  a  legatee,  for  $100,  without  voucher,  and  tax  charges  with- 
out sufficient  voucher,  were  disallowed. — Estate  of  Love,  537. 

Executor. — An  Item  of  Expense  in  an  Executor's  Accoimt,  for  re- 
demption under  tax  sales,  may  be   allowed. — Estate  of   Love,   537. 

Executors  are  Entitled  to  have  the  Costs  of  an  Appeal  Allowed  them 
in  their  account,  the  prosecution  of  which  is  necessary  to  obtain  a 
final  determination  of  their  rights  in  relation  to  commissions. — 
Estate   of   Eicaud,   220. 

Administrator — Allowance  for  Traveling  Expenses. — Where  an  ad- 
ministrator has,  in  good  faith,  journeyed  to  a  distant  state  upon  busi- 
ness of  the  estate,  and  has  incurred  an  attorney's  charge  in 
connection  therewith,  an  allowance  will  be  made  to  him  thereforj 
and  this  whether  or  not  he  misconceived  his  legal  duty. — Estate  of 
Shillaber,   120. 

Executor — Costs  of  Copying  Papers. — All  proceedings  necessary  to 
be  taken  by  the  executor  in  the  administration  of  the  estate  are 
part  of  his  duty,  and  any  papers  drawn  in  connection  therewith  are 
covered  by  the  statutory  compensation  provided  for  his  services;  and 
the  costs  of  engrossing  or  copying  the  same  are  not  taxable  against 
the  estate. — Estate  of  Shillaber,  120. 

Executor — Allowance  for  Clerical  Help. — When,  in  a  large  estate, 
the  impracticability  is  shown  of  doing  without  clerical  assistance  to 
collect  rents  and  keep  accounts,  the  court  usually  makes  some  allow- 
ance therefor;  but  guardedly,  and  never  without  rigorous  proof  of 
necessity,  although  no  objection  be  interposed. — Estate  of  Shillaber, 
120. 

The  Administrator  may  be  Allowed  a  Charge  for  Costs  Paid  in 
Serving  Notices  required  by  law  to  oust  a  defaulting  tenant,  and  al- 


Index.  577 

though  paid  to  an  agent  of  the  estate,  receiving  a  compensation  for 
collection  of  the  rents. — Estate  of  Shillaber,  120. 

An  Item  in  an  Account  for  "Executor's  Loss  of  Time"  will  be 
stricken   out. — Estate   of   Shillaber,   120. 

See  Counsel  Fees;  Special  Administrators,  2. 
Note. 

traveling  expenses,  allowance  for,  106. 
services  of  bookkeeper,  allowance  for,  107. 

EXPERT    EVIDENCE. 

See   Evidence,   2. 

FAMILY  ALLOWANCE. 

Family  Allowance — Necessity  of  Notice.— Under  section  1464,  Code 
of  Civil  Procedure,  no  notice  of  an  application  for  family  allowance 
is  necessary;  yet,  in  the  opinion  of  the  court,  it  would  be  a  salutary 
rule  to  require,  and  the  court  of  its  own  motion  requires  notice  to 
be  given  to  the  attorneys  for  absent  or  minor  heirs,  or  for  persons 
in  adverse  interest,  in  all  practicable  cases. — Estate  of  McDougal, 
456. 

FEES   OF   COUNSEL. 

See    Counsel    Pees. 

FEES  OF  EXECUTOR. 

See  Compensation  of  Executors. 

FILING  PAPERS. 

Filing  a  Paper  Consists  in  Presenting  It  at  the  Proper  Office  and 
leaving  it  there,  deposited  with  the  papers  in  such  olfice. — Estate  of 
McGovern,  150. 

Filing  Papers. — Section  1030  of  the  Political  Code  Defines  and  Fixes 
the  hours  during  which  public  offices  shall  be  kept  open;  and  a  paper 
which  is  left  in  a  public  office  one  hour  after  the  time  fixed  by  law 
for  its  closing,  is  left  there  when  the  office  is  legally  closed. — Estate 
of  McGovern,  150. 

See  Costs. 

FIXTURES. 

Fixtures.— The  Question  as  to  What  are  or  are  not  "Fixtures"  de- 
pends for  its  determination  upon  the  circumstances  of  the  construction 
and  intended  use  of  the  articles. — Estate  of  Murphy,  12. 

FLOWERS  FOR  GRAVE. 

See   Expenses   of   Administration, 
Prob.  Dec.  Vol.  I — 37 


578  Index. 

FRAUD. 

Fraud — Evidence. — Other  Things  Being  EcLual,  where  oath  is  op- 
posed to  oath,  on  a  charge  of  fraud,  the  charge  must  fall. — Estate 
of  McDougal,  456. 

Note. 

jurisdiction  of  equity  to  vacate  orders  and  decrees  in  probate  on 
the  ground  of  fraud,  263.     . 

FUNERAL,  BURIAL  EXPENSES. 

Funeral  Expenses. — The  Surviving  Hushand  is  Liable  for  the  fun- 
eral expenses  of  his  wife,  where  he  has  resources  sufficient  to  respond. 
Estate  of  Fitzpatrick,  117. 

Executor. — An  Expense  of  $147.50  for  a  Wall  Around  a  Cemetery 
Lot  may  be  allowed  as  a  proper  and  usual  charge  against  a  decedent 's 
estate. — Estate  of  Love,  537. 

Note. 

liability  of  husband  for  wife's  funeral  expenses,  117. 

GUARDIAN   AND   WARD. 

1.  In  General. 

Guardianship. — The  Probate  Court  has  no  Jurisdiction  to  appoint 
a  guardian  for  a  child  who  has  been  awarded  to  a  parent  in  divorce 
proceedings,  while  the  divorce  court  retains  the  right  to  control  the 
custody   of   the   child. — Guardianship   of   Murphy,    107. 

Guardianship — Religious  Instruction  of  Ward. — Where  a  child  is  bap- 
tized in  a  particular  faith  to  which  its  mother  belonged,  the  guar- 
dian of  the  child  should  secure  to  her  instruction  in  the  faith  of  the 
mother,  until  the  child  arrives  at  an  age  when  she  is  presumptively 
competent  to  determine  her  own  doctrine  of  religion. — Guardianship 
of  McGarrity,  200. 

Guardianship. — The  Custody  of  Minors  is  Always  Within  the 
Discretion  of  the  court;  and  this  discretion  is  to  be  exercised  in 
the  light  of  the  particular  and  peculiar  circumstances  of  each  case. 
The  court  is  not  bound  to  deliver  the  custody  to  any  particular  per- 
son,   not    even   the   father. — Estate    of    Smith,    169. 

Guardianship — Interest  of  State. — In  the  matter  of  the  guardian- 
ship of  minors,  the  state  is  interested  in  having  beneficial  influences 
surround   and  impress   its  future   citizens. — Guardianship   of   Hanson, 

182. 

2.  Eligibility  of  Person  as  Guardian. 

Guardian — Eligibility  of  Nonresident. — Where  the  mother  of  a 
minor  is  a  nonresident,  she  is  legally  incapable  of  obtaining  letters 


Index.  579 

of  guardianship  over  the  child  in  this  state. — Guardianship  of  Han- 
sen, 182. 

Guardian — Eligibility  of  Married  Woman.— Where  the  mother  of 
a  minor  is  a  married  woman,  she  is  ineligible  to  become  guardian. — 
Guardianship  of  Hansen,  182. 

Guardian. — Where  Application  is  Made  for  Guardianship  of  a 
Minor,  if  there  is  no  person  before  the  court  who  is  legally  entitled 
to  the  guardianship,  it  must  be  shown,  to  justify  a  resistance  of  the 
application,  even  by  the  nonresident  mother,  that  no  guardian  is 
needed  for  the  child,  or  that  the  applicant  is  an  unfit  person. — 
Guardianship  of   Hansen,   182. 

3.     Choice  and  Nomination  of  Guardian  by  Child. 

Guardian — Nomination  by  Minor. — A  minor,  aged  sixteen  years, 
who  is  intelligent  and  of  fair  education,  is  legally  competent  to  nomi- 
nate her  own  guardian,  subject  to  the  court's  approval. — Estate  of 
Zimmer,  142. 

Guardian — Nomination  by  Minor. — Although  an  intelligent  minor 
over  fourteen  years  of  age  is  competent  to  nominate  its  own  guardian, 
and  its  intelligent  preference  for  a  guardian  must  be  considered,  yet 
the  court  must  be  guided  in  its  determination  by  what  appears  to  be 
for  the  child's  best  interests,  as  to  its  temporal,  mental  and  moral 
welfare. — Estate   of   Zimmer,   142. 

Guardian. — The  Nomination  and  Preference  of  the  Minor  in  this 
case  of  her  aunt  for  guardian  as  against  the  child's  mother,  who  had 
remarried  after  divorce  from  the  child 's  father  to  one  who  was  the 
object  of  the  child's  aversion — discussed,  but  not  decided. — Estate  of 
Zimmer,   142. 

Guardian — Nomination  by  Minor. — In  this  case  it  was  held  that  an 
application  for  guardianship  by  the  minor's  nominee  should  be  de- 
nied, although  the  applicant  and  minor  were  closely  related  and  af- 
fectionately disposed  toward  each  other,  having  lived  and  loved  as 
if  mother  and  child  for  years;  it  appearing  that,  from  the  circum- 
stances of  the  applicant,  a  grant  of  guardianship  would  not  be  for 
the  best  interests  of  the  child  as  to  its  temporal  welfare. — Estate  of 
Zimmer,   142. 

Guardian — Nomination  by  Minor — Nonresidence. — Where  an  appli- 
cant for  guardianship  of  a  minor,  claiming  as  the  minor's  nominee, 
is  a  nonresident  of  the  state,  and  only  awaits  the  determination  of 
the  application  to  return  home,  the  court  will  not  be  justified  in  con- 
firming the  minor's  choice,  even  if  legally  permitted  to  do  so. — 
Estate  of  Zimmer,  142. 

Guardian — Nomination  by  Minor. — In  this  case  the  court,  in  de- 
termining an  application  for  guardianship  upon  the  nomination  of 
the  minor  over  fourteen  years  of  age — involving  the  minor 's  compe- 


580  Index. 

tency  and  the  applicant's  rights,  with  the  court's  duty  in  the  prem- 
ises— considered  and  construed  sections  1748,  1749,  Code  of  Civil  Pro- 
cedure, and  section  246,  253  (subdivision  6),  Civil  Code. — Estate  of 
Zimmer,  142. 

Guardian — Choice  of  Child. — A  child  ten  years  of  age  who  has  been 
educated  carefully  and  is  a  bright  girl  may  be  capable  of  expressing 
"an  intelligent  preference"  for  a  guardian,  which  the  court  will  con- 
sider.— Guardianship  of  Hansen,   182. 

Guardianship — Election  and  Nonunation  by  Child. — It  has  become 
the  rule,  in  awarding  the  custody  of  a  minor,  to  give  the  child,  if 
of  proper  age,  the  right  of  election  in  the  matter.  In  California, 
fourteen  years  is  the  age  fixed,  when  the  minor  has  a  right  of  nomi- 
nation, subject  to  the  court's  approval;  and  the  law  also  permits 
a  minor,  "if  of  sufficient  age  to  form  an  intelligent  preference,"  to 
express  such  preference,  which  may  be  considered  by  the  court. — 
Estate  of   Smith,   169. 

Guardianship — Child's  Choice  of  Custodian. — Mere  mental  pre- 
cocity is  not  the  test  of  a  child's  capacity  to  express  a  choice  of 
custodian;  acuteness  of  apprehension,  sharpness  of  intellect  on  the 
part  of  the  child,  will  not  alone  be  sufficient  for  the  judge.  The 
minor  must  be  capable  of  exercising  a  discretion  in  the  premises; 
its  mere  impulses  will  not  weigh.  In  this  case,  a  child  thirteen  years 
and  eight  months  old  was  held  "of  a  sufficient  age  to  form  an  intel- 
ligent preference,"  within  the  meaning  and  intent  of  section  246, 
Civil  Code,  relating  to  the  custody  and  guardianship  of  minors. — 
Estate  of   Smith,   169. 

Guardianship — Preference  of  Minor. — In  determining  what  is  for 
the  best  interests  of  a  child,  in  adjudging  its  custody  or  guardian- 
ship, the  court  may  consider  the  child's  preference,  if  it  is  of 
sufficient  age  to  form  an  intelligent  preference. — Estate  of  Smith,  169. 

4.    Examination  of  Minor  by  Court. 

Guardianship — Examination  of  Minor, — In  this  case,  in  accordance 
with  the  practice  of  the  court  in  matters  of  guardianship,  the  minor 
was  examined,  separate  and  apart,  at  length,  first  by  the  respective 
counsel  and  the  judge,  with  the  official  reporter;  then  by  the  judge 
alone,  counsel  being  absent;  and  finally  was  requested  to  express 
her  own  wishes  in  writing,  she  being  alone  and  without  any  influ- 
ence whatever.  Her  written  views,  with  her  transcribed  testimony, 
were  then  filed  as  part  of  the  record. — Estate  of  Smith,  169. 

Guardianship. — One  of  the  Objects  of  the  Court's  Private  Exam- 
ination of  the  Minor,  in  guardianship  matters,  is  to  discover  the 
child's  capacity;  its  appreciation  of  the  object  of  the  proceedings; 
the  strength  of  the  natural  affections,  and  its  idea  of  filial  duty  and 
parental  right;  and  the  child's  freedom  of  expression,  that  is,  ab- 
sence of  influence  or  teachings  adverse  to  parents.     The  court  looks 


Index.  581 

with  distrust  upon  any  choice  of  the  minor  contrary  to  the  natural 
affections   in   favor   of    a    parent. — Estate    of    Smith,    169. 

5.     Considerations  in  Awarding  Custody  of  Child. 

Guardianship — Custody  and  Welfare  of  Child. — In  appointing  a 
guardian  and  awarding  the  custody  of  a  child,  the  court  is  bound  to 
do  what  in  its  judgment  appears  to  be  for  the  best  interest  of  the 
child  in  respect  to  its  temporal,  its  mental  and  moral  welfare. — 
Guardianship   of   Danneker,   4. 

Guardianship. — The  Affection  of  a  Child  for  the  Person  seeking  its 
custody  as  guardian  is  always  given  consideration  by  the  court. — 
Guardianship  of  Danneker,  4. 

Guardianship — Social  and  Private  Life  of  Guardian. — It  is  the  duty 
of  the  court  to  inquire  into  the  social  relations  and  private  life  of  a 
person  seeking  to  be  appointed  guardian  of  a  child,  so  far  as  they  may 
affect   the    child's   welfare. — Guardianship    of   Danneker,    4. 

Guardianship — Wishes  of  Deceased  Mother. — In  the  appointment  of 
a  guardian  for  a  minor,  the  court  must  regard  the  dying  declaration 
of  the  mother  as  to  her  wishes  in  the  premises,  when  not  inconsistent 
with  the  welfare  of  the  child. — Guardianship  of  McGarrity,  200. 

Guardianship — Considerations   in   Awarding   Custody   of   Child. — It 

is  within  the  court's  sound  discretion  whether  the  custody  of  a  child 
will  be  given  to  the  father.  The  court  should  consider  not  only  the 
father's  fitness,  but  the  condition  of  the  child  with  its  present  custo- 
dians, its  relation  to  them,  the  present  and  prospective  provision  for 
its  support  and  welfare;  the  facts  as  to  its  present  home — its  dura- 
tion, and  whether  with  the  father's  consent,  and  upon  understanding  of 
permanency;  the  strength  of  the  ties  formed,  and  the  child's  wishes 
if  it  is  of  an  age  of  discretion. — Estate  of  Smith,  169. 

Guardianship. — Where  the  Best  Interests  of  a  Child  require  that 
it  should  remain  in  the  home  where  it  has  been  fostered  from  in- 
fancy, that  consideration  will  be  deemed  paramount  to  the  father's 
natural  right,  although  the  father  is  in  every  way  competent  and 
suitable. — Estate  of  Smith,  169. 

Guardianship. — The  Welfare  of  a  Minor  Means  Its  Permanent, 
not  temporary,  welfare.  The  court  is  governed  by  that  which,  look- 
ing to  the  previous  condition,  and  the  future  continued  residence 
of  the  child,  will  contribute  to  its  permanent  happiness  and  welfare. 
Estate  of  Smith,  169. 

Guardian — Best  Interests  of  Ward. — In  awarding  the  custody  of  a 
minor,  or  appointing  a  general  guardian,  the  court  is  guided  by  what 
appears  to  be  for  the  child's  best  interests  as  to  its  temporal,  mental 
and  moral  welfare. — Guardianship  of  Hansen,   182. 

Guardianship — Welfare  of  Child. — The  Pirst  Point  to  be  Considered, 
in   adjudging   the   custody   or   guardianship   of   a   minor,    is    the    best 


582  Index. 

interests  of  the  child  with  respect  to  its  temporal,  mental  and  moral 
welfare. — Estate  of   Smith,   169. 

Guardianship — Welfare  of  Child. — In  ^ardianship  matters  the  court 
acts  for  and  on  behalf  of  the  child,  and  must  regard,  as  the  paramount 
consideration,  the  interest  and  welfare  of  the  child.  To  this  every 
other  consideration  must  yield. — Estate  of  Smith,  169. 

6.      Parents'  Kight  to  Custody  of  Child  as  Against  Third  Persons. 

Guardianship. — Assuming  that  a  Father's  Eight  to  the  Custody  of 

his  child  revives  upon  the  death  of  the  mother,'  who  had  been 
awarded  the  custody  under  a  divorce  decree,  yet  it  must  be  shown 
that  the  minor's  interest  will  be  conserved  by  recognizing  the  father's 
right.— Estate   of  White,   128. 

Guardianship. — Where  a  Husband  Deserts  His  Wife,  who  is  left 
to  care  and  provide  for  their  infant  child,  this  will  be  considered  as 
an  abandonment  of  the  child,  upon  the  father's  application  for  guar- 
dianship after  the  mother's  death. — Estate  of  White,  128. 

Guardianship. — Reluctant  as  the  Court  Always  is  to  Interfere  with 
a  Father's  natural  right  to  his  child's  custody,  it  will  do  so  where 
the   child's   interest  demands. — Estate   of   White,   128. 

Guardianship. — In  the  Case  at  Bar  the  Court  Refused  Guardian- 
ship of  a  minor  of  divorced  parents  to  its  father,  applying  after  the 
death  of  the  mother,  and  granted  letters  to  the  maternal  grandmother 
of  the  minor,  for  the  following  reasons:  The  child  had  been  awarded 
to  the  mother  by  a  divorce  decree  against  the  father;  the  father 
never  provided  for  the  child,  except  when  compelled  by  judicial  pro- 
cess; he  never  showed  any  interest  in  the  child  from  the  time  of 
his  desertion  of  the  mother,  and  by  his  continued  course  of  conduct 
manifested  a  lack  of  paternal  instinct;  the  maternal  grandmother 
had  received  the  mother  and  child  when  deserted  by  the  father,  and 
had  ever  afterward  given  them  shelter  and  assistance,  and  she  was 
the  nominee  of  the  mother,  by  the  latter 's  dying  request.^Estate  of 
White,   128. 

Guardianship. — The  Father  is  Prima  Facie  Entitled  to  the  Custody 
of  His  Child.  But  this  is  not  an  absolute  right;  it  may  be  controlled 
by  other  considerations;  and,  if  the  father  is  unable  or  unfit  to  take 
charge  of  the  child  and  educate  it  suitably,  the  court  will  not  inter- 
fere to  take  the  child  from  those  who  are  fit  and  able  to  so  main- 
tain and  educate  it. — Estate  of  Smith,   169. 

Guardianship — Father's  Right  to  Child's  Custody. — As  a  general 
rule,  courts  assent  to  the  proposition  that  natural  right  and  public  pol- 
icy, as  well  as  the  safety  of  the  social  structure,  require  that  the 
father  should  have  the  custody  of  his  child.     But  this  is  not  impera- 


Index.  •       583 

tive  upon  the  court;  it  bends  to  the  interests  of  the  child. — Estate  of 
Smith,  169. 

Guardianship  Awarded  to  Aunt  Rather  than  to  Father. — In  this 
case  an  application  for  guardianship  of  a  minor  was  filed  by  its 
aunt,  and  a  counter-application  and  opposition  presented  by  its 
father,  the  mother  being  deceased.  The  minor  was  aged  thirteen 
years  and  eight  months,  and  held  to  have  proven  herself  fully  ca- 
pable of  expressing  an  "intelligent  preference"  in  the  matter,  which 
she  did  in  favor  of  her  aunt,  after  undergoing  a  thorough  exam- 
ination. The  child  was  born  in  the  dwelling  of  her  aunt  while  her 
parents  were  members  of  the  aunt's  domestic  circle;  and  the  mother 
and  child  ever  afterward  continued  to  live  with  the  aunt  until  the 
mother's  decease,  when  these  proceedings  were  instituted.  The 
child's  mother  had,  some  years  before  her  death,  obtained  a  divorce 
from  the  father,  by  default,  and  with  it  the  custody  of  the  child; 
and  it  was  her  last  wish  that  her  child  should  remain  with  the  aunt. 
Estate  of  Smith,  169. 

Guardianship  Awarded  to  Aunt — Right  of  Father  to  Visit  Ward. — 
In  this  case  the  court  found  that  the  best  interests  of  the  child  re- 
quired that  it  should  remain  with  the  aunt,  with  the  right  of  the 
father  to  visit  and  enjoy  the  society  of  the  child  at  all  reasonable 
times;  and,  in  awarding  the  minor's  custody  to  the  aunt,  the  court 
said  that  the  parties  ought  to  reach  an  amicable  understanding 
whereby  the  child  should  spend  part  of  her  time  with  her  father, 
and  so  allow  opportunities  for  mutual  affections  and  interests  to  grow 
up  between  her  and  her  paternal  relatives. — Estate  of  Smith,   169. 

Guardian — Stranger  Preferred  to  Mother. — Where  a  mother,  after 
desertion  by  her  husband,  committed  her  child  to  the  care  of  the  pe- 
titioner, agreeing  that  he  should  adopt  it  (which  he  never  legally 
did),  and  afterward,  under  judgment  in  an  action  for  divorce  by 
the  mother,  the  child  was  awarded  to  petitioner;  and  the  petitioner 
kept  the  child  for  nearly  six  years,  until  the  mother  wanted  to  get 
the  child  again,  when  he  applied  for  guardianship  of  her,  the  mother 
opposing  it,  and  the  divorce  decree  being  modified  pending  the 
guardianship  proceedings,  so  as  to  remit  the  question  of  custody  to 
the  guardianship  department;  and  during  all  the  period  aforesaid  pe- 
titioner and  his  wife  treated  and  educated  the  child  as  if  she  were 
their  own;  and  the  mother  is  legally  incapable  and  ineligible  to 
become  guardian,  being  a  nonresident  and  married;  and  the  child  has 
expressed  a  preference  for  petitioner,  and  it  would  not  be  for  the 
child's  best  interests  to  place  her  anywhere  but  with  petitioner, 
guardianship  should  be  granted  to  petitioner;  but  so  restricted  that 
the  mother  may  communicate  with  and  visit  the  child. — Guardian- 
ship of  Hansen,  182. 


584  Index. 

Note. 

jurisdiction    of   equity   to   grant   relief   from   orders   and    decrees 

in  guardianship  proceedings,  263. 
considerations  in  awarding  custody  of  child,  9. 
father's  right  to  custody  of  child,  when  lost,  181. 
wishes  of  child  considered  in  appointing  guardian,  181. 

HOLOGRAPHS. 

See    Wills,   5. 
Note. 
Holographic  Wills.     See  Wills,  Olographic. 

HOMESTEADS. 
1.     In   General. 

Homestead — How  Far  an  Estate. — The  right  to  have  a  probate 
homestead  set  aside  is  not  an  estate;  it  becomes  such  when  a  decree 
is  made  setting  aside  the  homestead  and  title  then  vests  in  the  bene- 
ficiaries.— Estate  of  Hayes,  531. 

Homestead — Effect  of  Setting  Aside. — When  property  is  set  apart 
as  a  probate  homestead,  the  property  is  then  taken  out  of  the  juris- 
diction  of  the  court. — Estate  of  Hayes,   551. 

Homestead. — The  Purpose  of  the  Statute  in  Giving  a  Homestead 
right  to  the  surviving  spouse  out  of  the  decedent's  separate  estate 
is  to  provide  a  home  for  the  survivor,  which  no  one  can  touch;  merely 
depriving  the  survivor  of  the  power  of  alienation. — Estate  of  Tate, 
217. 

Homestead — Residence  of  Deceased — Conclusiveness  of  Finding. — 
Where,  upon  the  admission  of  a  will  to  probate,  the  legal  residence 
and  domicile  of  testator  is  found  as  a  fact,  and  certified  and  judi- 
cially determined,  the  question  is  placed  outside  the  pale  of  contro- 
versy thereafter.  So  held,  upon  an  executor's  opposition  to  an  ap- 
plication for  a  homestead  by  tlie  testator's  widow. — Estate  of  Green, 
444. 

Homestead — Probate  and  Voluntary  Distinguished. — There  is  a 
distinction  between  a  homestead  under  section  1262,  Civil  Code,  and 
the  homestead  selected  by  the  court  in  the  administration  of  a  de- 
cedent's estate.  The  latter  is  governed  wholly  by  the  provisions  of 
section  1465,  Code  of  Civil  Procedure.  In  the  case  of  a  homestead 
selected  in  the  decedent's  lifetime,  the  claimant's  title  accrues  by 
survivorship;  as  to  a  homestead  selected  in  the  administration  of 
decedent's  estate,  the  claimant's  title  accrues  only  upon  the  de- 
cree of  the  court  or  judge   setting  it  apart. — Estate  of   Green,  444. 

Homestead. — The  Probate  Court  has  no  Discretion  to  deny  an  ap- 
plication for  a  homestead  by  the  family  of  a  decedent,  presented 
under  section  1465,  Code  of  Civil  Procedure. — Estate   of  Green,  444. 


Index.  585 

Homestead — Value  of  Premises. — In  this  case  tlie  court  held  that 
the  value  of  the  premises  ordered  set  apart  as  a  homestead  should 
be  taken  as  of  the  date  of  the  application;  any  subsequent  increase 
in  value  being  immaterial. — Estate   of   Green,  444. 

2.  Nature  of  Homestead  Right — Date  at  Which  Determined. 

Homestead — Nature  of  Right. — The  right  to  a  homestead  is  wholly 
statutory;  it  cannot  be  asserted  as  a  natural  right.  The  law-making 
power  is  competent  to  repeal  the  provisions  of  the  statute  regu- 
lating the  right,  and  thereafter  homesteads  would  be  unknown. — 
Estate  of  Green,  444. 

Homestead — Successor  to  Right. — The  right  to  a  probate  homestead 
may  be  lost,  and  there  can  be  no  successor  to  that  right. — Estate  of 
Hayes,  551. 

Homestead. — The  Right  of  a  Widow  to  have  a  Homestead  Set  Apart 
to  her  from  the  estate  of  her  former  husband  must  be  determined 
from  the  facts  as  they  exist  at  the  date  of  the  action  of  the  court. — 
Estate   of   Green,   444. 

Homestead. — The  Right  to  a  Probate  Homestead  is  tested  or  con- 
sidered not  as  of  the  date  of  the  death  of  the  decadent  but  as  of  the 
time  of  the  application. — Estate  of  Hayes,  551. 

3.  Persons  Entitled  to  Homestead.  « 

Homestead. — When  Application  is  Made  by  a  Minor  child  of  a  de- 
cedent to  have  a  homestead  set  apart  from  community,  property,  the 
surviving  widow  having  died,  and  the  other  children  having  attained 
majority,  without  applying  for  a  homestead,  the  court  must  grant 
the  application  and  set  aside  the  homestead  absolutely,  not  limiting 
it  to  the  period  of  minority  or  otherwise. — Estate   of   Hayes,  551. 

Homestead. — A  Widow  Without  Minor  Children  is  Entitled  to  have 
a  homestead  selected  and  set  apart  by  the  court  out  of  decedent's 
separate  estate,  there  being  no  community  property. — Estate  of  Tate, 
217. 

Homesjtead. — It  does  not  Impair  or  Diminish  the  Right  of  the 
Widow  to  have  a  homestead  set  apart  that  there  are  no  minor  chil- 
dren.— Estate   of  Maxwell,   126. 

Homestead. — The  Probate  Court  must,  upon  proper  application, 
set  apart  to  the  widow  a  homestead,  if  none  has  been  selected  during 
the  lifetime  of  the  decedent.  It  has  no  discretion  in  the  premises. 
Estate  of  Maxwell,  126. 

Homestead. — The  Court  must  Set  Apart  a  Homestead  upon  the  ap- 
plication of  a  widow,  if  none  has  been  selected  in  the  lifetime  of 
the  deceased  spouse.  There  is  no  discretion  in  the  matter. — Estate 
of  Tate,  217. 


586  Index. 

Homestead. — The  Executor's  Answer  to  the  Widow's  Application 
for  a  homestead  alleged  that  two  adult  daughters  (one  being  married), 
referred  to  in  the  widow 's  petition,  were  always  considered  and 
treated  as  part  of  the  decedent's  household  and  family.  The  court 
'gnored  this  claim  for  the  daughters,  and  set  apart  the  homestead 
to  the  widow  alone. — Estate  of  Green,  444. 

Homestead. — ^In  this  Case  the  Widow  Applied  to  have  a  Home- 
stead set  apart  to  her,  and  the  executor  answered,  setting  up  that 
decedent's  residence  and  home  was  in  England,  where  he  died  and  left 
a  homestead,  which  he  devised  to  his  wife  and  daughters.  The  court 
found  on  the  probate  of  the  will  here  that  the  decedent  had  a  domicile 
and  legal  residence  in  California,  and  was  only  temporarily  in  England 
for  his  health;  and  held  that  the  applicant,  being  the  decedent's  widow 
at  the  date  of  the  application,  and  a  resident  of  the  state,  and  there 
being  property  suitable  for  a  homestead,  all  the  conditions  required  by 
the  statute  existed  to  entitle  her  to  a  homestead. — Estate  of  Green, 
444. 

4.  Selection  from   Separate  Estate. 

Homestead — Separate  Property. — In  this  ease  the  court  ordered 
that  the  property,  being  decedent's  separate  estate,  be  set  apart  only 
during  the   applicant 's  widowhood. — Estate   of   Green,   444. 

Homeste^. — If  a  Homestead  is  Selected  from  the  Separate  Property 

of  the  decedent,  the  court  can  set  it  apart  only  for  a  limited  period, 
to   be   designated  in  the   order. — Estate   of   Maxwell,   126. 

Homestead — Selection  from  Separate  Property. — It  is  only  when  a 
homestead  is  set  apart  from  the  separate  property  of  the  decedent 
that  it  is  required  to  be  for  a  limited  period. — Estate  of  Hayes,  551. 

The  Eight  of  the  Surviving  Spouse  to  a  Homestead  in  separate  es- 
tate of  the  decedent  is  limited  to  an  estate  for  years,  for  life,  or  until 
the  happening  of  some  event,  as  the  marriage  of  the  survivor,  as  may 
be  decreed  by  the  court.  But  the  exercise  of  the  court 's  power  is  lim- 
ited by  a  sound  discretion  acting  upon  the  circumstances  of  the 
particular  case;  if  the  survivor  is  young  and  likely  to  remarry,  a 
limitation  for  life  might  be  indiscreet,  otherwise  where  she  is  of  an 
advanced  age. — Estate   of   Tate,   217. 

5.  Testamentary  Power. 

Homestead. — Even  if  the  Testator  Devises  His  Entire  Estate,  which 
was  separate  property,  his  widow  will  still  be  entitled  to  a  homestead. 
Estate  of  Maxwell,  126. 

Homestead — Testamentary  Power. — The  power  or  duty  of  the  court 
to  set  apart  a  homestead  for  the  family  of  a  decedent  is  not  lim- 
ited by  the  fact  that  the  decedent  disposed  of  his  property  by  will. 
Estate  of  Green,  444. 


Index.  587 

Homestead. — The  Power  of  Testamentary  Disposition  is  Given  and 

defined  by  statute,  and  is  subordinate  to  the  authority  vested  in  the 
probate  court  to  appropriate  property  for  the  support  of  testator's 
family,  including  a  homestead,  and  for  the  payment  of  debts. — Es- 
tate of  Green,  444. 

Note. 

duty  of  court  to  set  apart  is  Imperative,  556. 

minor  children,  when  are  entitled  to  homestead,  556. 

nature  of  homestead  set  apart  from  separate  estate,  220. 

right  of  surviving  spouse  to  homestead  in  absence  of  children,  219. 

HUSBAND    AND    WIFE. 

Marital  Obligation — Filial  Devotion. — A  husband  should  not  allow 
the  duty  he  owes  to  his  wife  to  be  overcome  by  his  love  for  his 
parents.  Where  one's  marital  obligation  comes  into  conflict  with  his 
filial  devotion,  the  latter  should  give  way  to  the  former. — Estate  of 
White,  128. 

See   Marriage. 

INSANITY    AND    INSANE    DELUSIONS. 

1.  Insanity  in  General. 

The  Words  "Insane"  and  "Incompetent"  defined  .and  distin- 
guished.—Estate  of  Hill,  380. 

Insanity — Unreasonable  Suspicions. — Unfounded  and  unreasonable 
suspicions  are  not  insanity. — Estate  of  Scott,  271. 

Insanity — Insomnia. — The  mind  of  a  testatrix  is  not  necessarily 
diseased  because  she  is  at  times  troubled  with  insomnia  while  af- 
flicted with  an   intestinal   ailment. — Estate   of   Scott,   271. 

Insanity  of  Testator — Evidence  and  Burden  of  Proof. — The  legal 
presumption  is  in  favor  of  the  sanity  of  a  testator,  and  the  burden 
of  proof  is  on  the  contestant  of  his  will  to  demonstrate  the  con- 
trary; and  if  the  contestant  prevails,  in  a  case  of  doubt,  it  must 
be  by  a  preponderance  of  proof,  and  the  number,  character  and  in- 
telligence of  witnesses,  and  their  opportunity  for  observation,  should 
be  taken  into  account. — Estate  of  Scott,  271. 

2.  Committing  Lunatic  to  Asylum. 

Insanity. — In  Order  to  Commit  a  Person  to  an  Asylum  for  the  in- 
sane, the  court  must  be  satisfied,  upon  examination,  pursuant  to  sec- 
tion 258,  Civil  Code,  that  such  person  is  of  unsound  mind,  and  unfit 
to  be  at  large.  The  provisions  of  the  codes  as  to  such  examination 
summarized. — Matter   of  Ingram,   137. 

Insanity. — There  are  no  "Commissioners  of  Insanity."  Physicians 
are  merely  summoned  to  hear  the  testimony,  and  to  make  a  personal 


588  Index. 

examination  of  the  alleged  insane  person;  and,  if  they  believe  him 
to  be  dangerously  insane,  they  make  a  certificate  of  certain  facts, 
whereupon  it  is  reserved  to  the  judge,  upon  whom  rests  the  responsi- 
bility, to  adjudicate  upon  the  charge. — Matter  of  Ingram,  137. 

Insanity. — Although  a  Person  is  Subject  to  Certain  Delusions, 
where  the  court  is  not  satisfied  that  he  is  ''so  far  disordered  in  mind 
as  to  endanger  health,  person  or  property,"  or  "unfit  to  be  at  large," 
it  is  bound  to  give  him  the  benefit  of  such  reasonable  doubt  as  it  en- 
tertains upon  the  whole  charge. — Matter  of  Ingram,  137. 

3.    Insane  Delusions  in  General. 

Will — Delusion. — It  is  not  the  Strength  of  a  Mind  which  deter- 
mines its  freedom  from  delusion;  it  is  its  soundness. — Estate  of  In- 
gram, 222. 

Will — Delusion  of  Mind  is  a  Species  of  Insanity. — The  main  char- 
acter of  insanity,  in  a  legal  view,  is  the  existence  of  a  delusion. — 
Estate  of  Ingram,  222. 

Will. — A  Person  is  the  Victim  of  Delusion  when  he  pertinaciously 
believes  something  to  exist  which  does  not.  Belief  of  things  which 
are  entirely  without  foundation  in  fact  is  insane  delusion;  that  is, 
where  things  exist  only  in  the  imagination  of  a  person,  and  the  non- 
existence of  which  neither  argument  nor  proof  can  establish  in  his 
mind. — Estate   of   Ingram,   222. 

Will. — If  a  Person  is  Under  a  Delusion,  though  there  is  but  Partial 

Insanity,  yet  if  it  is  in  relation  to  the  act  in  question,  it  will  defeat 
a  will  which  is  the  direct  offspring  of  that  partial  insanity. — Estate 
of  Ingram,  222. 

Insane  Delusions — Business  Capacity. — Business  capacity  may  co- 
exist with  monomania  or  insane  delusions. — Estate  of  Scott,  271. 

Insanity — Faulty  Logic. — ^False  logic  or  faulty  ratiocination  is  far 
from  the  manifestation  of  insanity,  so  long  as  the  process  is  formally 
correct,  not  incoherent     or  inconsequential. — Estate  of  Scott,  271. 

Insane  Delusions — Fear  of  Poisoning. — A  fear  of  poisoning  on  the 
part  of  a  testatrix,  even  though  a  delusion,  must,  in  order  to  in- 
validate her  testamentary  act,  be  continuous,  persistent,  and  opera- 
tive upon  her  volitional  capacity. — Estate  of  Scott,  271. 

Insane  Delusions — Fear  of  Poisoning. — ^The  mistaken  belief  of  a 
testatrix,  when  suffering  with  chronic  stomach  trouble,  that  her  food 
has  been  tampered  with,  does  not,  as  a  matter  of  law,  amount  to 
an  insane  delusion. — Estate   of  Scott,  271. 

Insane  Delusions — Unfounded  Suspicions. — The  sanity  of  the  testa- 
trix in  this  case  being  questioned  because  she  suspected  that  her 
husband  was  unfaithful  to  her,  and  that  he  was  attempting  to  poison 
her  and  to  send  her  to  an  insane  asylum,  the  court  observed:  There 
is  a  very  large  class  of  people  whose  sanity  is   undoubted,  who   are 


Index.  589 

unduly  jealous  or  suspicious  of  others,  and  especially  of  those  closely 
connected  with  them,  and  who  upon  the  most  trivial,  even  whimsical, 
grounds  wrongfully  impute  the  worst  motives  and  conduct  to  those 
in  whom  they  ought  to  confide.  This  insanity,  which  is  developed 
in  a  great  variety  of  forms,  is  altogether  too  common,  and  too  many 
persons  confessedly  sane  are  to  a  greater  or  less  degree  afflicted  with 
it,  to  justify  us  in  saying  that  because  the  deceased  was  so  af- 
flicted she  was  insane,  or  the  victim  of  an  insane  delusion. — Estate 
of   Scott,   271. 

Insane  Delusions — Suspicions — Evidence  and  Burden  of  Proof. — The 
line  between  unfounded  and  unreasonable  suspicions  of  a  sane  mind 
and  insane  delusions  is  sometimes  quite  indistinct  and  difficult  to 
define.  However,  the  legal  presumption  is  in  favor  of  sanity,  and  on 
the  issue  of  sanity  or  insanity  the  burden  is  upon  him  who  asserts 
insanity  to  prove  it.  Hence,  in  a  doubtful  case,  unless  there  ap- 
pears a  preponderance  of  proof  of  mental  unsoundness,  the  issue 
should  be   found  the   other  way. — Estate   of  Scott,   271. 

Insane  Delusions — Suspicions — Tests  of  Insanity. — Suspicion  is  the 
imagination  of  the  existence  of  something,  especially  something 
wrong,  without  proof,  or  with  but  slight  proof;  it  is  an  impression 
in  the  mind  which  has  not  resulted  in  a  conviction.  It  is  synonymous 
with  doubt,  distrust,  or  mistrust — the  mind  is  in  an  unsettled  con- 
dition. Suspicion  existing,  slight  evidence  might  produce  a  rational 
conviction  or  conclusion;  this  without  evidence,  however  slight,  would 
be  a  delusion.  Is  there  evidence,  however  slight?  This  is  the  test. 
The  suspicion  may  be  illogical  or  preposterous,  but  it  is  not,  there- 
fore, evidence  of  insanity. — Estate  of  Scott,  271. 

Insane  Delusions — Suspicions  as  to  Husband's  Constancy. — If  a 
wife  has  evidence,  though  slight,  on  which  to  base  a  suspicion  of  her 
husband's  unfaithfulness,  and  has  no  settled  conviction  on  the  sub- 
ject, her  suspicion  does  not  amount  to  an  insane  delusion. — Estate  of 
Scott,  271. 

Insane  Delusion — Conspiracy  to  Confine  Wife  in  Asylum. — The  con- 
tention in  this  case  that  the  testatrix  was  afflicted  with  an  insane 
delusion  in  that  she  believed  her  husband  conspired  to  confine  her 
in  an  insane  asylum,  was  found  by  the  court  to  be  unsupported  by 
the  evidence,  especially  in  view  of  the  fact  that  the  husband  had 
twitted  her  of  being  crazy  and  threatened  to  break  her  will. — Estate 
of  Scott,  271. 

Insane  Delusions — Testimony  of  Business  Men. — The  value  of  the 
testimony  of  business  men  and  acquaintances,  acquired  in  commercial 
dealings  with  a  person  alleged  to  be  the  victim  of  insane  delusions,  is 
favorably  regarded  by  the  courts,  on  the  issue  of  insanity. — Estate 
of  Scott,  271. 

Insane  Delusions — Vulgarity  of  Testatrix. — Where  the  vulgarity  in 
behavior   and   speech   of   a   testatrix   is   relied   upon   to   establish   the 


590  Index. 

presence  of  insane  delusions,  her  whole  conduct,  at  home  and  aboard, 
should  be  considered,  and  not  merely  her  conduct  within  her  own 
house,  the  alleged  acts  of  immodesty  in  this  case  being  confined  to 
the  home  premises  of  the  testatrix,  while  her  behavior  abroad  was 
not  subject  to  adverse  criticism. — Estate  of  Scott,  271. 

Insane  Delusions — ^Eccentricities  not  Suddenly  Acquired. — Eccentric 
habits  of  speech,  if  not  suddenly  acquired,  are  not  evidence  of  in- 
sanity.— Estate  of   Scott,  271. 

Insane  Delusions — Suspicions  as  to  Husband's  Constancy. — Where 
there  was  at  least  one  instance  in  the  conduct  of  a  husband  which 
might  arouse  in  the  mind  of  the  wife  a  suspicion  as  to  his  con- 
stancy, the  fact  that  her  suspicions  may  have  been  unjust  and  her 
inferences  too  general,  is  merely  an  error  of  logic,  and  not  an  evi- 
dence of  insanity  or  of  an  insane  delusion.  She  has  a  right  to  in- 
fer, however  erroneously,  or  from  inadequate  premises,  to  a  universal 
conclusion. — Estate  of  Scott,  271. 

4.    Belief  Based  on  Some  Evidence. 

Insane  Delusion — Wrong  Conclusions  as  Evidence. — If  any  fact 
exists  as  a  foundation  for  a  testator's  belief  that  a  child  borne  by 
bis  wife  is  not  his,  he  cannot  be  said  to  be  the  victim  of  an  insane 
delusion,  however  mistaken  he  may  be  in  his  conclusion. — Estate  of 
Solomon,  85. 

Insane  Delusion. — A  Person  may  Act  on  Weak  Testimony,  yet  be 
under  no   delusion. — Estate   of   Solomon,   85. 

Will. — Belief  Based  on  Evidence,  However  Slight,  is  not  Delusion; 
delusion  rests  upon  no  evidence  whatever;  it  is  based  on  mere  sur- 
mise. The  burden  of  proof  is  upon  the  party  alleging  insanity  or 
insane    delusion. — Estate   of   Ingram,   222. 

Will — Insane  Delusion. — If  a  Person  Persistently  Believes  Supposed 
Facts  which  have  no  real  existence  except  in  his  perverted  imagina- 
tion, and  against  all  evidence  and  probability,  and  conducts  him- 
self, however  logically,  upon  the  assumption  of  their  existence,  he 
is,  as  far  as  they  are  concerned,  under  a  morbid  delusion;  and  de- 
lusion in  that  sense  is  insanity.  So,  if  a  testator  labored  under  such 
a  delusion  in  respect  to  his  wife  and  family  connections,  who  would 
naturally  have  been  the  objects  of  his  testamentary  bounty,  and  the 
court  can  see  that  the  dispository  provisions  of  his  alleged  will  were 
or  might  have  been  caused  or  aifected  by  the  delusion,  the  instru- 
ment is  not  his  will. — Estate  of  Tiffany,  478. 

Will — Insane  Delusion. — A  Belief  based  on  evidence,  however  slight, 
is  not  delusion. — Estate  of  Hill,  370. 

Note. 

definition  and  general  nature,  250. 
what  constitutes  insane  delusion,  87. 


Index.  591 

insurance,  proof  of  loss. 

See   Expenses   of   Administration. 

INTEREST. 

See  Executors  and  Administrators,  5. 

INTOXICATION. 

See  "Wills,  3. 
Note. 

testamentary  capacity  of  persons  addicted  to  the  use  of  intoxi- 
cants, 404,  532. 

INVENTORY. 

Inventory. — An  Administrator  must  Make  a  True  Inventory  and 

appraisement  of  all  estate  of  the  decedent  coming  to  his  possession 
or  Jcnowledge;  and  he  is  accountable  with  respect  to  this  duty. — Es- 
tate of  Partridge,  208. 

Inventory — Adverse  Claim  Against  Property. — If  any  portion  of  a 
decedent's  estate  is  the  subject  of  an  adverse  claim,  it  is  prudent  on 
the  part  of  the  administrator  to  add  a  memorandum  to  the  inventory, 
stating  the  asserted  claim.  But  the  property  must  be  inventoried; 
the  administrator  cannot  stand  neutral  because  the  decedent's  title 
is  disputed. — Estate  of  Partridge,  208. 

Inventory — Property  Claimed  Adversely  to  Estate. — An  adminis- 
trator cannot  omit  to  inventory  property  said  to  belong  to  his  in- 
testate which  is  the  subject  of  an  adverse  claim,  on  the  pretense 
that  he  wants  to  stand  neutral  between  the  estate  and  the  adverse 
claimant,  leaving  the  merits  of  the  controversy  to  the  court's  de- 
termination. The  administrator  cannot  assume  an  attitude  of  neu- 
trality; the  statute  points  out  his  duty;  and  for  the  court  to  pass 
upon  the  merits  of  the  adverse  claim  would  be  to  assume  a  jurisdic- 
tion which,  in  probate,  it  cannot  exercise. — Estate  of  Partridge,  208. 

Inventory — Disputed  Title. — The  Probate  Court  ought  not,  it  seems, 
to  reject  an  inventory  of  a  decedent's  estate,  or  order  it  modified, 
because  it  contains  property,  the  title  to  which  is  disputed. — Estate 
of  Partridge,  208. 

Inventory — Trying  Questions  of  Title. — Where  part  of  an  inven- 
toried estate  of  a  decedent  is  in  dispute,  the  adjudication  of  the 
title  belongs  to  common-law  tribunals;  a  probate  court  cannot  con- 
clude the  question. — Estate  of  Partridge,  208. 

See  Appraisers  of  Estate. 

Note. 

title  to  property,  determination  of,  for  purposes  of  inventory,  212. 


592  Index. 

INVESTMENT   OF   FUNDS. 
See  Trusts,  3. 

JURISDICTION. 

1.  Of  Probate  Court  in  General. 

Probate  Court — Jurisdiction. — Tlie  Superior  Court,  sitting  in  pro- 
bate, cannot  exercise  other  than  purely  probate  jurisdiction;  its  ju- 
risdiction, as  succeeding  the  powers  of  the  former  probate  court,  is 
not  enlarged. — Estate  of  McLaughlin,  257. 

Probate  Court — Jurisdiction. — The  Superior  Court,  sitting  in  pro- 
bate, has  no  greater  jurisdiction  than  the  probate  court  which  it  suc- 
ceeds.— Estate  of  Maxwell,  135. 

Probate  Court — Jurisdiction. — The  Superior  Court,  while  engaged  in 
the  exercise  of  probate  jurisdiction,  cannot  entertain  a  cause  of  ac- 
tion to  obtain  relief  upon  the  ground  of  fraud,  such  as  a  petition  to 
disregard  and  declare  void  a  devise  alleged  to  have  been  procured 
through  fraud,  and  to  make  distribution  to  the  heirs. — Estate  of 
Maxwell,  135. 

2.  Of  Probate  Court  to  Try  Title. 

See   Inventory. 

Probate  Court — Jurisdiction  to  Try  Title. — The  superior  court, 
sitting  in  probate,  has  no  authority  to  adjudicate  the  question  of  title 
to  personal  property  in  dispute  between  a  third  person  and  the  estate 
of  a  decedent. — Estate  of  Curtis,  533. 

3.  As  Depending  on  Residence  of  Decedent. 

Jurisdiction — Residence  of  Deceased. — The  Issuance  of  Special 
Letters  of  administration  to  the  public  administrator  in  one  county 
is  not  a  final  determination  of  his  right  to  general  letters  of  admin- 
istration as  against  the  public  administrator  of  another  county. — 
Estate  of  Sealy,  90. 

Jurisdiction — Residence  of  Deceased. — The  Issuance  of  Special 
Letters  of  administration  leaves  the  jurisdictional  facts  still  to  be 
ascertained  prior  to  the  issuance  of  general  letters. — Estate  of  Seely, 
90. 

Jurisdiction — Residence  of  Deceased — Conclusiveness  of  Deter- 
mination.— Where  the  public  administrators  of  two  counties  each  file 
an  application  for  letters  of.  administration,  there  being  a  doubt  as 
to  which  county  the  decedent  was  a  resident  of,  and  one  applicant 
contests  the  application  of  the  other,  the  adjudication  of  the  court 
that  it  has  jurisdiction  is  a  bar  to  the  contestant's  own  application 
in  the  other  county. — Estate  of  Seely,  90. 


Index.  593 

LEGATEES    AND    DEVISEES. 

Devisee — Right  to  Possession. — A  Tenant  of  Eealty,  specifically  de- 
vised to  her  for  life,  is  not  entitled  to  possession  on  testator's  death. 
But  as  she  will  be  entitled  to  the  rents,  issues  and  profits  upon  dis- 
tribution of  the  estate,  her  intermediate  occupancy  might  not  ordi- 
narily challenge  criticism;  yet  aliter,  if  objection  made. — Estate  of 
Shillaber,  101. 

A  Legatee  of  a  Specific  Bequest  can  Take  Only  Such  Interest  in 

the  property  bequeathed  as  the  testator  had  a  right  or  power  to  dis- 
pose of  by  will. — Estate  of  Eicaud,  212. 

Where  Property  Specifically  Bequeathed  is  Sold  Under  Order  of 
Court,  the  legatee  is  not  entitled  to  the  proceeds  before  distribution, 
but  the  same  must  be  held  subject  to  administration. — Estate  of 
Eicaud,  212. 

See  Wills. 

LETTERS    TESTAMENTARY    AND    OF    ADMINISTRATION. 

See  Executors  and  Administrators;  Jurisdiction,  3. 

LIMITATION  OF  ACTIONS. 

See  Trusts,  4. 

LUNATICS. 

See  Insanity  and  Insane  Delusions. 

MARRIAGE. 

Unsolemnized  Marriage — Evidence  to  Establish. — Where  it  appears 
that  parties,  without  the  sanction  of  any  ecclesiastical  ceremony, 
agreed  between  themselves  to  live  together  as  man  and  wife,  and 
did  live  as  such  in  one  place  of  domicile  for  years,  and  in  other 
places,  and  so  held  themselves  out  to  others  moving  in  the  same 
limited  social  sphere;  and  it  further  appears  that  each  of  the  parties 
testified  in  a  legal  controversy,  wherein  they  were  both  called  as  wit- 
nesses, to  being,  respectively,  married  persons,  and  stated  their  re- 
spective places  of  habitation  to  be  where  in  fact  they  lived  together 
at  the  time,  their  marriage  is  proved. — Estate  of  Whalen,  202. 

Unsolemnized  Marriage — Evidence  to  Establish. — Where  persons 
called  to  prove  that  a  man  and  woman  lived  as  husband  and  wife 
and  held  themselves  out  as  such  to  others  living  in  the  same  social 
sphere,  are  credible  witnesses,  no  matter  how  circumscribed  is  their 
social  environment,  their  testimony  is  sufficient  to  establish  repute. — 
Estate  of  Whalen,  202. 

Unsolemnized  Marriage — Declarations  to  Support. — Where  it  ap- 
pears that  an  alleged  spouse  of  an  unsolemnized  marriage  has  testi- 
Prob.  Dec,  Vi  i.  1—88 


59-1  Index. 

fied  as  a  witness,  subsequently  to  the  alleged  marriage,  that  he  was 
a  married  man,  such  declaration  is  the  most  important  evidence  that 
can  be  offered  in  support  of  such  a  marriage. — Estate  of  Whalen, 
202. 

Marriage. — Where  the  Relation  of  Husband  and  Wife  is  Once  Es- 
tablished, no  subsequent  conduct  of  either  spouse,  which  does  not 
culminate  in  a  legal  dissolution,  can  affect  the  judicial  determination 
of  the  question  of  their  status. — Estate  of  Whelan,  202. 

See  Husband  and  Wife. 

MAXIMS. 

Maxim. — No  One  Shall  Derive  any  Profit,  Through  the  Law,  by  the 

influence  of  an  unlawful  action  or  relation. — Estate  of  Tiffany,  478. 

MINOR   HEIRS. 

Minor  Heirs. — The  Court  will  Endeavor  to  Conserve  the  Interests 
of  Minors,  and  will  at  all  times  aid  their  attorney  in  obtaining  for 
them  their  full  rights;  and  any  application  in  that  behalf  will  be 
welcomed  by  the  court,  which  regards  with  the  highest  favor,  the 
claims  of  minor  heirs. — Estate  of  McDougal,  456. 

MISTAKE. 

Note. 

jurisdiction  of  equity  to  grant  relief  from  orders  and  decrees  in 
probate  on  the  ground  of  mistake,  263. 

MORTGAGEE. 

See  Accounts  of  Executor. 

NOMINATION    OF    ADMINISTRATOR. 

See  Executors  and  Administrators,  1. 

NOMINATION    OF    GUARDIAN. 

See   Guardian   and   Ward,   3. 

NOTICE. 

See  Probate  of  Will,  2. 

OLOGRAPHS. 

See  Wills,  5. 

PARENT   AND  CHILD. 

See   Guardian  and  Ward. 


Index.  595 

PARTIAL   DISTRIBUTION. 

See  Distribution,  3. 

PARTNERSHIP  INTEREST. 

See  Distribution. 

PERPETUITIES. 

See  Trusts. 

PETITION. 

See  Distribution,  3. 

PRESUMPTION. 

JNote. 

that  testator  intended  to  dispose  of  entire  estate,  150. 

PROBATE  COURT. 

See  Courts;  Jurisdiction. 


PROBATE  OF  WILL. 


1.    In  General. 


The  Probate  of  a  Will  and  the  Appointment  of  an  Executor  are 
distinct  emanations  from  the  will  of  the  court,  usually,  though  not 
necessarily  embodied  in  one  order,  but  determined  upon  entirely  dif- 
ferent sets  of  facts. — Estate  of  McLaughlin,  80. 

2.    Notice  and  Hearing. 

Probate  of  Will — Setting  for  Hearing,  Evidence  of. — When  it  is 
claimed  that  the  clerk  did  not  set  a  petition  for  probate  for  hear- 
ing, a  notice  in  fact  issued  by  him  and  fixing  the  day  is  the  best 
evidence  that  the  law  has  complied  with. — Estate  of  McLaughlin,  20. 

Probate  of  Will — Setting  for  Hearing. — Any  Omission  in  matters 
of  form  in  fixing  the  date  for  hearing  a  petition  to  probate  a  will 
may  be  disregarded  by  the  court  or  ordered  supplied  when  the  proper 
fact  is  made  satisfactorily  to  appear. — Estate  of  McLaughlin,  80. 

Probate  of  Will. — The  Publication  of  the  Notice  fixing  the  day  for 
hearing  the  probate  of  a  will,  when  made  in  a  weekly  paper,  must 
appear  on  at  least  three  different  days  of  publication,  but  not  neces- 
sarily in  three  consecutive  weekly  issues. — Estate  of  McLaughlin, 
80. 


596  Index. 

3.     Revocation  of  Probate. 

Probate   of   Will. — A   Creditor   cannot   Petition   for   a   Revocation 

of  the  probate  of  a  will. — Estate  of  McLaughlin,  80. 

See  Contest  of  Will;    Undue  Influence. 
Note. 

jurisdiction  of  equity  to  grant  relief  from  probate,  266. 
publication  of  notice  of  hearing  of  petition  for  probate.  84. 

PUBLICATION. 

Note. 

of  will  by  testator,  32. 

RECORD. 

Record. — Matters  Prejudicial  to  the  Character  of  any  person  will 
be  excluded  from  the  record  when  not  essential  to  a  proper  decision. 
Guardianship  of  Danneker,  4. 

REDEMPTION  FROM  TAX  SALE. 

See   Expenses   of    Administration, 

REMOVAL   OF  EXECUTOR. 

See  Executors  and  Administrators,  4. 

RENTS. 
See  Executors  and  Administrators,  5. 

RENUNCIATION  OF  COMPENSATION. 

See  Executors  and  Administrators,  4. 

REPAIRS. 

See  Expenses  of  Administration. 

RESIDUARY   CLAUSES. 

See  Wills,  8. 

REVOCATION   OF   LETTERS. 

See   Executors   and   Administrators,   4. 

REVOCATION   OF   PROBATE. 

See    Probate    of    Will,    3. 

REVOCATION  OF  WILL. 

See  Wills,    12. 


Index.  597 

SALES  BY  ADMINISTRATOR. 

Administrator's  Sale — Advance  Bids  and  Resale. — When,  upon  the 
hearing  of  a  return  of  an  administrator's  sale  of  personal  property, 
the  purchaser  increases  his  bid  from  $3,000  to  $5,000,  it  is  manifest 
that  the  price  obtained  is  greatly  disproportionate  to  the  value  of 
the  property;  and  in  such  case  the  court  will  refuse  confirmation 
of  the  sale,  and  will  order  a  new  sale  to  be  had  under  circumstances 
calculated  to  bring  the  utmost  value  of  the  property. — Estate  of  Jen- 
nings, 155. 

Administrator's  Sale — Release  of  Bidder. — If  a  bidder  at  a  pri- 
vate sale  by  an  administrator  states  that  she  has  not  had  time  to 
examine  the  title  because  of  the  shortness  of  the  notice,  and  does 
not  wish  to  be  bound  unless  the  title  is  good,  to  which  the  admin- 
istrator assents,  she  should  be  released  from  her  bid  when  her  coun- 
sel advises  against  the  title,  whether  or  not  his  view  of  the  law  is 
correct. — Estate  of  Neustadt,  95. 

Administrator's  Sale. — The  Court  Should  Rectuire  an  Additional  Bond 
from  the  administrator  upon  ordering  the  sale  of  any  real  property  be- 
longing to  the  estate. — Estate  of  Eiddle,  215. 

Note. 

jurisdiction  of  equity  to  vacate  sales,  265. 
rule  of  caveat  emptor,  96. 

SETTLEMENT   OF   ACCOUNTS. 

See  Accounts  of  Executor. 


SPECIAL   ADMINISTRATORS. 


1.    In  General. 


Special  Administrator — Person  Entitled  to  Letters. — In  making  the 
appointment  of  a  special  administrator,  the  court  must  give  pref- 
erence to  the  person  entitled  to  letters  testamentary  or  of  adminis- 
tration, unless  he  is  shown  incompetent  for  the  position.  The  court 
has  no  discretion. — Estate  of  Held,  206. 

Special  Administrator— Want  of  Integrity  and  Improvidence.— The 
evidence  in  this  case  is  held  insufficient  to  establish  improvidence 
or  want  of  integrity  on  the  part  of  the  applicant  for  special  letters 
of  administration. — Estate  of  Held,  206. 

Where  It  Appeared  that  a  Special  Administrator  had  been  a  Trus- 
tee for  the  decedent  in  her  lifetime,  and  there  was  a  large  balance 
at  the  time  of  decedent's  death,  for  which  he  should  be  held  ac- 
countable, and  he  has  made  no  statement  of  his  indebtedness  or 
trust  in  his  account  rendered  as  special  administrator,  he  should  be 
charged  with  the  amount  of  such  indebtedness  upon  the  settlement 
of  his  account.— Estate  of  Armstrong,  157. 


598  Index. 

Special  Administrator. — It  is  the  Duty  of  a  Special  Administrator 
to  Collect  and  preserve,  for  the  executor  or  administrator,  all  person- 
alty and  choses  of  every  kind  belonging  to  the  decedent  and  his 
estate;  also  to  take  the  charge  of,  enter  upon  and  preserve  from  dam- 
ages, waste  and  injury  the  realty. — Estate  of  Shillaber,  101. 

Special  Administrator — Actions  by  and  Against. — For  all  purposes 
of  the  performance  of  the  duty  of  a  special  administrator  to  collect 
and  preserve  the  assets,  real  and  personal,  of  the  decedent,  and  for 
all  necessary  purposes,  he  may  commence  and  maintain  or  defend 
suits  and  other  legal  proceedings,  as  in  the  case  of  a  general  adminis- 
trator.— Estate  of  Shillaber,  101. 

2.     Accounts,  Expenditures  and  Compensation. 

Special  Administrator — Expenditures  for  Business  Trip. — Where  a 
special  administrator  has  in  good  faith  journeyed  to  a  distant  state 
upon  business  of  the  estate,  an  allowance  will  be  made  to  him  therefor; 
but  he  will  be  entitled  to  no  greater  remuneration  than,  in  the  court's 
opinion,  would  be  proper  for  the  dispatch  of  the  business  of  such 
journey. — Estate  of  Shillaber,  101. 

Special  Administrator. — For  the  Compensation  of  a  Special  Admin- 
istrator, the  court  can  accept  no  other  standard  than  that  furnished 
by  section  1618,  Code  of  Civil  Procedure  (for  general  administration). 
Commissions  are  here  allowed  on  the  amount  accounted  for,  includ- 
ing an  additional  sum  of  one-half  of  such  commissions  for  extra 
service,  as  permitted  under  such  section. — Estate  of  Shillaber,  101. 

Special  Administrator — Accounts. — The  Accuracy  of  a  special  ad- 
ministrator's account  will  be  tested  by  strictly  legal  methods,  under 
the  rule  of  section  1415,  Code  of  Civil  Procedure,  and  his  duty  as 
therein  found,  and  as  defined  in  the  first  and  second  headnotes  above. 
Estate  of  Shillaber,  101. 

Special  Administrator — Allowance  for  Clerical  Assistance. — In  this 
case  the  court  allowed  the  special  administrator  for  clerical  help  in 
collection  of  rents,  and  keeping  the  accounts,  four  per  cent  upon  the 
collections;  but  reserved  the  right  in  other  cases  to  deal  differently 
with  a  similar  item. — Estate  of  Shillaber,   101. 

Special  Administrator. — An  Item  of  Expense  for  Detective  Service, 

claimed  to  be  incurred  for  the  estate 's  interest,  was  in  this  case  dis- 
allowed by   the   court. — Estate   of   Shillaber,   101. 

Special  Administrator — Expenditure  on  Personalty. — Until  distrib- 
ution, an  article  of  personalty  specifically  bequeathed  by  decedent 
must  be  treated  as  part  of  the  estate,  and  not  allowed  to  deteriorate. 
Hence,  where  the  special  administrator  has  made  an  expenditure  upon 
such  article  to  prevent  its  deterioration,  the  item  should  be  allowed 
in  his  account. — Estate  of  Shillaber,  101. 

See  Jurisdiction,  3. 


Index.  599 

Note. 

preference  to  persons  entitled  to  letters,  207. 

STATUTES. 

Construction  of  Statute  Adopted  from  Another  State. — The  rule 
that  a  statute  adopted  from  another  state  will  be  given  the  con- 
struction placed  upon  it  by  the  courts  of  that  state  prior  to  its 
adoption,  is  not  absolute,  especially-  where  there  has  been  a  single 
decision  which  has  since  been  questioned  or  repudiated  in  the  for- 
eign state. — Estate  of  Doe,  54. 

SUCCESSION. 

Succession — Vesting  of  Estate  in  Heirs. — Heirs  succeed  to  the 
property  of  their  intestate  immediately  upon  his  death;  then  their 
interest  becomes  vested,  subject  only  to  the  lien  of  the  administra- 
tor for  the  payment  of  the  debts  of  the  decedent  and  the  expenses 
of  administration. — Estate  of  Lane,  88. 

Succession. — The  Next  of  Kin  Entitled  to  Share  in  the  Distribution 
of  the  estate  of  an  intestate  are  such  only  as  are  next  of  kin  at  the 
time  of  his  death. — Estate  of  Lane,  88. 

The  Widow  can  Claim  to  Own  an  Undivided  Half  Only  of  Such 
Property  as  is  distributed  in  kind.  If  she  receive  one-half  of  the 
community  property,  her  right  as  survivor  is  satisfied. — Estate  of 
Eicaud,  220. 

TRAVELING  EXPENSES. 
See  Expenses  of  Administration. 

TRUSTS. 
1.    In  General. 

Trust. — The  Following  Language  in  a  Letter  Written  by  One  Who 
has  Collected  and  holds  moneys  for  another,  establishes  a  trust: 
"It  leaves  a  balance  in  your  favor  of  $15,000,  besides  what  has 
accumulated  since  the  estate  was  fixed  up,  which  I  will  loan  out  [at] 
about  nine  per  cent,  being  the  best  I  can  do  at  present." — Estate 
of  Armstrong,  157. 

Trusts Liberal  Interpretation  of  Statutes. — Provisions  of  the  codes 

in  respect  to  testamentary  trusts  should  be  construed  liberally.— 
Estate  of  Doe,  54. 

Trusts Purpose  and  Validity. — If  a  testator,  after  making  specific 

gifts,  devises  the  residue  of  his  estate  to  trustees  "for"  certain 
beneficiaries,  and  elsewhere  in  the  will  provides  that  the  executors, 
who  are  also  named  as  trustees  of  the  trust,  shall  pay  to  the  per- 
sons designated  as  those  "for"  whom  the  property  is  held,  a  speci- 
fied sum  per  month,  the  payment  of  that  sum  constitutes  a  trust  pur- 


600  Index. 

pose  of  the  trust  of  the  residuum,  and  the  latter  is  not  void  as  a 
naked  trust. — Estate  of  Doe,  54. 

Trusts — Whether  Bare  and  Void. — A  devise  "in  trust"  for  others 
is  not  invalid  as  a  bare  trust,  when  it  imposes  on  the  trustee  the 
duty  of  paying  the  rents  and  profits  of  the  property  to  the  benefi- 
ciaries.— Estate  of  Doe,  54. 

Trusts — Effect  of  Partial  Invalidity. — An  invalid  provision  in  a 
trust,  which  is  not  an  integral  or  essential  part  of  the  trust  scheme, 
will  not  necessarily  vitiate  the  other  provisions. — Estate  of  Doe,  54. 

2.  Duration — Unlawful  Accumulations. 

Trusts — Construction  as  to  Duration. — In  determining  the  duration 
of  a  trust  term,  the  inherent  character  of  the  trust  and  its  essential 
limitations  may  form  an  element  in  the  construction  to  be  given  to 
the  language  creating  it. — Estate  of  Doe,  54. 

Trusts — On  Whose  Lives  Term  may  be  Limited. — A  trust  created 
under  subdivision  3  of  section  857  of  the  Code  of  Civil  Procedure, 
to  receive  the  rents  and  profits  of  real  property,  and  apply  them  to 
the  use  of  designated  beneficiaries,  may  be  limited  on  lives  of  per- 
sons other  than  the  beneficiaries. — Estate  of  Doe,  54. 

Trusts — ^Duration  Limited  by  Purposes. — A  trust  in  real  property 
to  pay  the  rents  and  profits  thereof  to  designated  beneficiaries  can- 
not endure  longer  than  the  lives  of  the  beneficiaries,  where,  upon 
the  assumption  that  they  will  outlive  the  trusts,  the  lives  of  the  lat- 
ter are  made  the  measure  of  the  trust. — Estate  of  Doe,  54. 

Trusts — Unlawful  Accumulations. — A  direction  to  trustees  to  pay 
taxes,  street  assessments,  and  other  charges  and  expenses  incurred 
in  improvements,  out  of  the  income  of  the  trust  estate,  does  not  pro- 
vide for   an   unlawful  accumulation. — Estate  of   Doe,   54. 

Trusts — Unlawful  Accumulations. — A  provision  in  a  trust  for  re- 
taining the  income  of  the  estate  and  paying  it  over  to  the  benefi- 
ciaries annually  is  not  void. — Estate  of  Doe,  54. 

3.  Use  and  Investment  of  Funds  by  Trustee, 

Trustee — ^Use  and  Management  of  Funds. — An  agent  or  trustee  has 
no  right  to  use  the  funds  intrusted  to  him  as  his  own,  nor  to  min- 
gle them  with  his  own  funds,  without  clear  authorization;  it  is  his 
duty  to  keep  the  funds  separate  and  intact,  and  free  from  any  lia- 
bility such  as  he  incurs  in  the  use  of  his  own  moneys. — Estate  of 
Armstrong,  157. 

Trustee — Management  of  Funds. — An  agent  or  trustee  must  pur- 
sue with  exactitude  the  instructions  given  as  to  funds  intrusted 
with  him,  or  show  that  his  particular  act  was  ratified  with  full 
knowledge  on  his  principal's  part  as  to  the  nature  of  the  act. — Es- 
tate of  Armstrong,  157. 


Index.  601 

Trustee — Loaning  Funds. — Where  an  agent  or  trustee  is  instructed 
to  "loan  out"  funds  held  by  him,  it  means  that  he  is  to  invest 
them  for  his  principal's  account,  and  to  make  an  accounting  to  the 
principal  of  such  investment.  He  is  not  authorized  to  borrow  the 
funds  for  his  own  purposes. — Estate  of  Armstrong,   157. 

Trustee — Investment  of  Funds. — Where  confidence  is  reposed  in  a 
trustee  to  judiciously  invest  the  funds  in  his  hands,  .this  confidence 
is  abused  when  he  places  himself  in  the  position  of  a  debtor  to 
the  principal,  without  fully  advising  the  latter  of  the  risk  he  runs, 
and  giving  him  an  opportunity  of  knowing  the  hazard  that  the 
funds  are  subjected  to. — Estate  of  Armstrong,  157. 

Where  a  Trustee  to  Invest  has  Made  Himself  a  Debtor  to  His 
Principal,  and  thereby  subjected  the  funds  to  a  risk  and  hazard,  he 
must  show  that  he  fully  advised  his  principal  in  the  premises,  in 
order  to  avoid  responsibility  for  the  loss  his  conduct  may  cause. — 
Estate  of  Armstrong,  157. 

4.    Limitation  of  Actions. 

Trust — Limitation  of  Actions. — Where  one  occupies  a  fiduciary  re- 
lation, the  statute  of  limitations  cannot  avail  as  a  defense.  Lapse 
of  time  is  no  bar  to  a  subsisting  trust,  clearly  established. — Estate 
of  Armstrong,  157. 

Trust — Limitation  of  Actions. — Where  one  has  occupied  a  fiduciary 
relation,  the  statute  of  limitations  cannot  be  availed  of,  unless  and 
until  a  demand  on  the  part  of  the  principal,  and  a  refusal  by  the 
trustee   are  shown. — Estate   of  Armstrong,   157. 

See  Charitable  Bequests;  Wills,  11. 

UNDUE   INFLUENCE. 
1.    In  General. 

Will. A  Will  Produced  by  Undue  Influence  cannot  stand. — Estate 

of  Ingram,  222. 

Will. — ^Undue  Influence  is  any  Kind  of  Influence,  either  through 
fear,  coercion,  or  importunity,  by  which  the  testator  is  prevented 
from  expressing  his  true  mind.  It  must  be  an  influence  adequate  to 
control  the  free  agency  of  the  testator.  If  a  weak-minded  person 
is  importuned  to  such  an  extent  that  he  has  not  sufficient  strength 
of  mind  to  determine  for  himself,  so  that  the  proposed  script  ex- 
presses the  views  and  wishes  of  the  person  importuning,  rather  than 
his  own,  and  is  not  his  free  and  unconstrained  act,  it  is  not  his  will. 
Undue  influence,  or  supremacy  of  one  mind  over  another,  is  such  as 
prevents  that  other  from  acting  according  to  his  own  wish  or  judg- 
ment.—Estate  of  Ingram,  222. 

Will— Undue  Influence. — Neither  Advice,  Argument,  nor  Persuasion 
will   vitiate   a  will   made   freely   and   from   conviction,   though    such 


602  Index. 

will  miglit  not  have  been  made  but  for  such  advice  and  persuasion. 
Neither  does  undue  influence  arise  from  the  influence  of  gratitude, 
affection  or  esteem. — Estate  of  Ingram,  222. 

Will. — Undue  Influence  may  be  Defined  as  that  which  compels  the 
testator  to  do  that  which  is  against  his  will,  through  fear  or  a  de- 
sire of  peace,  or  some  feeling  which  he  is  unable  to  resist,  and  but 
for  which  the  .will  would  not  be  made  as  it  is,  although  the  testator 
may  know  what  he  is  about  when  he  makes  the  will,  and  may  have 
sufficient  capacity  to  make  it. — Estate  of  Ingram,  222. 

Will. — Wliat  would  be  an  Undue  Influence  on  One  Man  might  be 
no  influence  at  all  on  another.  This  depends  upon  the  capacity,  in 
other  respects,  of  the  testator. — Estate  of  Ingram,  222. 

Will. — Undue  Influence  must  be  an  Influence  Exercised  in  Relation 
to  the  will  itself,  and  not  in  relation  to  other  matters  or  transactions. 
But  it  need  not  be  shown  to  have  been  actually  exercised  at  the  point 
of  time  that  the  will  was  executed. — Estate  of  Ingram,  222. 

Wills — Undue  Influence. — If  the  Law  Always  Suspects  and  Inex- 
orably Condemns  undue  influence,  and  presumes  it  from  the  nature 
of  the  transaction,  in  the  legitimate  relations  of  attorney,  guardian 
and  trustee,  much  more  sternly  should  it  deal  with  unlawful  rela- 
tions, where  they  are,  in  their  nature,  relations  of  influence  over  the 
kind  of  act  under  investigation.  In  their  legitimate  operation,  trust, 
positions  of  influence  are  respected;  but  where  apparently  used  for 
selfish  advantage  they  are  viewed  with  deep  suspicion;  and  it  would 
be  strange  if  unlawful  relations  should  be  more  favorably  regarded. 
Estate  of  Tiffany,  478. 

Will  Contest. — Where  the  Questions  of  Unsoundness  of  Mind  and 
Undue  Influence  are  presented  in  the  same  case,  and  in  their  con- 
sideration may  overlap  one  the  other,  it  has  been  said  that  as  legal 
propositions  they  are  to  be  kept  distinct  and  apart.  But  considering 
the  two  issues  together,  it  is  noted  that  although  mere  weakness  of 
intellect  does  not  prove  undue  influence,  yet  it  may  be  that  in  such 
feeble  state,  with  the  mind  weakened  by  sickness,  dissipation  or  age, 
the  testator  more  readily  and  easily  becomes  the  victim  of  the  im- 
proper influences  of  those  who  see  fit  to  practice  upon  him. — Estate 
of  Tiffany,  478. 

2.     Lawful  or  Unlawful  Relation  of  Parties. 

Will — ^Undue  Influence. — While  the  Natural  Influence  of  a  Lawful 
Relation  must  be  lawful,  even  where  affecting  testamentary  disposi- 
tions, the  natural  or  ordinary  influence  of  an  unlawful  relation  must  be 
unlawful,  in  so  far  as  it  affects  testamentary  dispositions  favorably 
to  the  unlawful  relations  and  unfavorably  to  the  lawful  heirs.  So, 
it  would  be  doing  violence  to  the  morality  of  the  law,  and  thus  to 
the  law  itself,  if  courts  should  apply  the  rule  recognizing  the  natural 
influence  arising  out  of  legitimate  relationship  to  unlawful  as  well  as 


Index.  603 

to  lawful  relations;  and  thereby  make  them  both  equal,  in  this  re- 
gard at  least,  which  is  contrary  to  their  very  nature. — Estate  of  Tif- 
fany, 478. 

"Will — Undue  Influence. — There  is  a  Distinction  Between  the  In- 
fluence of  a  Lawful  Relation  and  that  of  an  unlawful  relation,"  A 
lawful  influence,  such  as  that  arising  from  legitimate  family  and 
social  relations,  must  be  allowed  to  produce  its  natural  results,  even 
in  influencing  the  execution  of  a  v/ill.  However  great  the  influence 
thus  generated,  there  is  no  taint  of  unlawfulness  in  it;  nor  can 
there  be  any  presumption  of  its  unlawful  exercise  merely  because 
it  is  known  to  have  existed  and  to  have  manifestly  operated  on  the 
testator's  mind  as  a  reason  for  his  testamentary  disposition.  It  is 
only  when  such  influence  is  exerted  over  the  very  act  of  devising, 
preventing  the  will  from  being  truly  the  testator's  act,  that  the  law 
condemns  it  as  vicious. — Estate  of  Tiffany,  478. 

Will — Undue  Influence. — General  Cases  and  Authorities,  as  to  what 
does  and  what  does  not  constitute  undue  influence,  are  inapplicable  in 
a  case  where  the  influence  charged  originated  and  was  exercised  under 
an   unlawful   relation. — Estate  of   Tiffany,   478. 

3.     Evidence  and  Burden  of  Proof. 

Will. — Undue  Influence  cannot  be  Presumed,  but  must  be  Proved, 
and  the  burden  of  proving  it  lies  on  the  party  alleging  it.  Such 
evidence  must  often  be  indirect  and  circumstantial,  for  undue  in- 
fluence can  rarely  be  proved  by  direct  and  positive  testimony.  The 
circumstances  to  be  considered,  stated. — Estate  of  Ingram,  222. 

Will — Insane  Delusion — Undue  Influence. — The  Evidence  in  this 
Case  reviewed  at  length  and  the  conclusion  reached,  that  the  testa- 
trix was  the  victim  of  an  insane  delusion,  of  which  the  instrument 
propounded  was  the  offspring,  and  that  the  testatrix  was  unduly  in- 
fluenced to  make  the  will  in  favor  of  proponent. — Estate  of  Ingram, 
222. 

Will — Evidence  of  Undue  Influence. — Upon  the  issue  of  undue  in- 
fluence in  the  execution  of  wills,  the  evidence  must  often  be  indirect 
and  circumstantial.  Very  seldom  does  it  occur  that  a  direct  act  of 
influence  is  patent;  persons  intending  to  control  the  actions  of  an- 
other, especially  as  to  wills,  do  not  proclaim  the  intent.  The  ex- 
istence of  the  influence  must  generally  be  gathered  from  circum- 
stances, such  as  whether  the  testator  formerly  intended  a  different 
disposition;  whether  he  was  surrounded  by  those  having  an  object 
to  accomplish,  to  the  exclusion  of  others;  whether  he  was  of  such 
weak  mind  as  to  be  subject  to  influence;  whether  the  instrument  is 
such  as  would  probably  be  urged  upon  him  by  those  around  him; 
whether  they  are  benefited  to  the  exclusion  of  formerly  intended 
beneficiaries.— Estate  of  Tiffany,  478. 


604  Index. 

Will — ^Undue  Influence. — The  Evidence  in  this  contest  of  a  will, 
examined  and  held  insufficient  to  establish  a  charge  of  undue  in- 
fluence.—Estate  of  Hill,  380. 

Note. 

evidence  establishing,  251. 
presumption  and  burden  of  proof,  251. 
when  invalidates  will,  251. 

WILLS. 

1.  Testamentary  Capacity  in  General. 

Testamentary  Capacity — Test  for  Determining. — The  tests  of  tes- 
tamentary capacity  are:  (1)  Understanding  of  what  the  testatrix 
is  doing;  (2)  how  she  is  doing  it;  (3)  knowledge  of  her  property; 
(4)  how  she  wishes  to  dispose  of  it;  (5)  and  who  are  entitled  to  her 
bounty. — Estate  of  Scott,  271, 

Will. — Every  Person  Over  the  Age  of  Eighteen  Years,  of  Sound 
Mind,  may,  by  last  will,  dispose  of  all  his  estate  remaining  after 
payment  of  his  debts. — Estate  of  Ingram,  222. 

Will. — A  Person  is  of  Sound  and  Disposing  Mind  who  is  in  the  pos- 
session of  all  the  natural  mental  faculties  of  man,  free  from  de- 
lusion, and  capable  of  rationally  thinking,  reasoning,  acting  and  de- 
termining for  himself.  A  sound  mind  is  one  wholly  free  from  de- 
lusion. Weak  minds  differ  from  strong  minds  only  in  the  extent 
and  power  of  their  faculties;  unless  they  betray  symptoms  of  de- 
lusion their  soundness  cannot  be  questioned. — Estate  of  Ingram,  222. 

Will. — ^If  the  Testator  has  Sufficient  Memory  and  Intelligence  fairly 
and  rationally  to  comprehend  the  effect  of  what  he  is  doing,  to  ap- 
preciate his  relations  to  the  natural  objects  of  his  bounty,  and  un- 
derstand the  character  and  effect  of  the  provisions  of  his  will;  if  he 
has  a  reasonable  understanding  of  the  nature  of  the  property  he 
wishes  to  dispose  of,  and  of  the  persons  to  whom  and  the  manner  in 
which  he  wishes  to  distribute  it,  and  so  express  himself,  his  will  is 
good.  It  is  not  necessary  that  he  should  act  without  prompting. — 
Estate  of  Ingram,  222. 

Testamentary  Capacity — Will  as  Evidence. — A  will  may  be  consid- 
ered in  proof  of  its  own  validity  and  of  the  sanity  of  its  maker. — 
Estate  of  Scott,  271. 

2.  Unsoundness  of  Mind. 

See   Insanity   and   Insane   Delusions. 

Will Unsoundness   of  Mind. — The   Evidence   in   this   will   contest 

held  insufficient  to  establish  a  charge  of  unsoundness  of  mind  on  the 
part  of  the  testator. — Estate  of  Hill,  380. 


Index.  605 

Will. — The  Fact  that  a  Guardian  has  heen  Appointed  for  a  person 
because  of  his  incompetency  to  manage  his  affairs  is  not  conclusive  of 
his  incapacity  to  make  a  will. — Estate  of  Hill,  380. 

Testamentary  Capacity — IncLuisition  Before  Execution  of  Will. — 
The  examination  by  medical  experts  of  a  testatrix  prior  to  her  exe- 
cution of  her  will,  for  the  purpose  of  determining  her  testamentary 
capacity,  is  discussed  by  the  court,  both  as  a  suggestion  of  insanity, 
and   as   a   wise    precaution. — Estate    of   Scott,    271. 

Testamentary  Capacity — Insane  Delusions. — In  this  case  the  hus- 
band of  the  testatrix  contests  her  will  on  the  ground  that  she  was 
of  unsound  mind  by  reason  of  being  the  victim  of  insane  delusions 
that  her  husband  was  unfaithful,  that  he  was  trying  to  poison  her, 
and  that  he  was  conspiring  to  confine  her  in  an  insane  asylum,  but 
the  courts  find  against  the  contestant  and  sustains  the  will. — Estate 
of   Scott,   271. 

Testamentary  Capacity — Suspicion  of  Husband. — If  there  are  causes 
sufficient  to  induce  a  sane  woman  to  ignore  her  husband  in  her  will, 
or  reduce  what  otherwise  would  have  been  a  just  allowance,  the 
fact  that  she  entertains  an  unjust  or  an  unfounded  suspicion  in  re- 
gard to  his  treatment  of  her,  or  an  unjust  prejudice  against  him,  does 
not  affect  the  will  nor  demonstrate  that  she  is  necessarily  of  un- 
sound mind. — Estate  of  Scott,  271. 

Testamentary  Capacity — Testimony  of  Attesting  Witnesses. — The 
testimony  of  the  attesting  witnesses,  and,  next  to  them,  the  testimony 
of  those  present  at  the  execution  of  the  will,  are  most  to  be  relied 
upon  in  determining  the  question  of  testamentary  capacity. — Estate 
of  Scott,  271. 

3.     Intoxication, 

Will — Testamentary  Capacity — Intoxication. — A  man  temporarily 
overcome  by  a  single  debauch  is,  for  the  time  being,  of  unsound 
mind,  and  has  not  testamentary  capacity;  so  a  person  to  whom  in- 
toxication has  become  such  a  habit  that  his  intellect  is  disordered 
and  he  has  lost  the  rational  control  of  his  mental  faculties,  is  of 
unsound  mind. — Estate  of  Tiffany,  478. 

Will Inebriety    of   Testator. — The   Evidence   in   this   will   contest 

examined  and  held  not  to  sustain  a  charge  that  the  testator  was 
so  addicted  to  the  excessive  use  of  intoxicants  as  to  deprive  him  of 
testamentary  capacity. — Estate  of  Hill,  380. 

Will — Intoxication  and  Undue  Influence. — The  testator  in  this  case 
had  been  a  prominent  and  respected  citizen,  but  for  some  years  be- 
fore his  death  he  became  an  habitual  drunkard,  and  after  becoming 
such  his  whole  being  changed  with  respect  to  his  affection  for  his 
wife  and  children,  as  well  also  in  his  personal  habits  and  his  social 
nature   and   disposition.     During   this   period    he   became    acquainted, 


606  Index. 

while  taken  away  from  home,  with  a  woman  whom  he  permitted  to  act 
as  his  nurse;  and  who  subsequently  obtained  a  control  over  him,  to 
the  exclusion  of  his  family,  and  so  that  he  never  again  returned  to 
his  wife  or  children.  Six  months  before  his  death  he  executed  a  will 
wherein  this  woman  was  made  residuary  legatee,  and  for  nearly  all 
his  estate;  his  wife  and  children  were  expressly  excluded  by  the  in- 
strument. They  contested  the  probate  of  the  will,  and  tendered  as  is- 
sues unsoundness  of  mind,  and  undue  influence  exercised  by  the 
residuary  legatee.  The  court  found  in  favor  of  the  contestants  upon 
both  issues,  and  denied  the  probate  of  the  will. — Estate  of  Tiffany, 
478. 

4.  Execution  and  Attestation. 

Will — Attestation  in  Presence  of  Testator. — There  must  be  two 
attesting  witnesses  to  a  will,  each  of  whom  must  sign  his  name  as 
a  witness  at  the  end  of  the  will,  at  the  testator's  request  and  in  his 
presence.  In  the  presence  of  the  testator  means  that  he  must  not 
only  be  present  corporally,  but  mentally  as  well,  capable  of  under- 
standing the  acts  which  are  taking  place  before  him. — Estate  of 
Fleishman,  18. 

A  Will  is  not  Attested  in  the  Presenec  of  the  Testatrix  when  the 
witnesses  subscribe  their  names  in  an  apartment  adjoining  the  room 
in  which  she  is  lying  ill,  where  it  is  impossible  for  her  to  see  them, 
she  having  previously  signed  her  name  while  reclining  on  her  bed, 
not  being  able  to  rise  therefrom. — Estate  of  Fleishman,  18. 

5.  Olographs. 

An  Olographic  Will  Which  by  Mistake  Bears  a  Date  at  least  twenty- 
eight  years  prior  to  the  time  of  its  execution  should  be  denied 
probate. — Estate  of  Fay,  428. 

6.  Construction  of  Testament. 

Will. — The   Words   of   a   Will   are   to   Receive    an    Interpretation 

which  will  give  to  every  expression  some  effect,  rather  than  one 
which  will  render  any  of  the  expressions  inoperative. — Estate  of 
Maxwell,  145. 

Wills — Construing  Parts  in  Relation  to  Each  Other. — All  the  parts 
of  a  will  are  to  be  construed  in  relation  to  each  other,  and  so  as 
if  possible  to  form  one  consistent  whole. — Estate  of  Maxwell,  145. 

Will — Contradictory  Clauses. — Where  several  parts  of  a  will  are  ab- 
solutely irreconcilable,  the  latter  part  must  prevail;  but  the  former 
of  several  contradictory  clauses  is  never  sacrificed  except  on  the 
failure  of  every  attempt  to  give  all  such  a  construction  as  will 
render  every  part  effective. — Estate  of  Maxwell,  145. 


Index.  607 

Will. — When  the  Meaning  of  Any  Part  of  a  Will  is  Ambiguous 
or  doubtful,  it  may  be  explained  by  any  reference  thereto  or  recital 
thereof  in  another  part  of  the  will. — Estate  of  Maxwell,  145. 

Will. — The  Words  of  a  Will  are  to  be  Taken  in  Their  Ordinary 
and  Grammatical  Sense,  unless  a  clear  intention  to  use  them  in  an- 
other sense  can  be  collected,  and  that  other  can  be  ascertained. — 
Estate  of  Maxwell,  145. 

Will. — A  Will  Consisting  of  Several  Parts,  separately  executed  by 
the  testator,  must  be  considered  as  a  single  instrument  completed 
in  all  its  parts  at  one  time. — Estate  of  Maxwell,  145. 

Will. — A  Bequest  of  "Her  Wardrobe"  by  the  testatrix  is  held  in 
this  case  not  to  include  her  "ornaments." — Estate  of  Taylor,  252. 

Will. — Where  a  Testator  Gives  to  B  a  Specific  Fund  or  plroperty 
at  the  death  of  A,  and  in  a  subsequent  clause  disposes  of  all  his 
property,  the  combined  effect  of  the  several  clauses,  as  to  such  fund 
of  property,  is  to  vest  it  in  A  for  life,  and  after  his  decease  in  B. — 
Estate  of  Maxwell,  145. 

Will. — A  Bequest  of  "Ornaments"  is  in  this  case  construed  to 
embrace  jewelry  and  "jewels  in  general." — Estate  of  Traylor,  252. 

7.  Avoiding  Intestacy. 

Will — Construction  Avoiding  Partial  Intestacy. — The  law  prefers  a 
construction  of  a  will  which  will  prevent  a  partial  intestacy,  to  one 
which  will  permit  such  a  result,  unless  a  construction  involving  par- 
tial intestacy  is  absolutely  forced  upon  the  court,  for  the  fact  of 
making  a  will  raises  a  very  strong  presumption  against  any  expecta- 
tion or  desire,  on  the  part  of  the  testator,  of  leaving  any  portion 
of  his  estate  beyond  the  operation  of  his  will. — Estate  of  MaxweU, 
145. 

Wills — Construction  as  to  Intestacy. — Of  the  two  modes  of  inter- 
preting a  will,  that  is  to  be  preferred  which  will  prevent  a  total 
intestacy;  but  if  the  legal  effect  of  the  expressed  intent  of  a  tes- 
tator is  intestacy,  it  will  be  presumed  that  he  designed  that  result.— 
Estate  of  Doe,  54. 

8.  Residuary  Clause. 

Wills — Meaning  of  "Residue"  or  "Residuum." — Eesidue  or  resi- 
duum, technically,  is  the  remainder  or  that  which  remains  after  tak- 
ing away  a  part;  in  a  will,  such  portion  of  the  estate  as  is  left  af- 
ter paying  the  charges,  debts,  devises,  and  legacies;  and  the  pre- 
sumption is  that  the  testatrix  used  it  in  that  sense,  unless  a  contrary 
intention  clearly  appears. — Estate  of   Scott,  368. 

Wills — Meaning  of  Residue,  How  Determined. — Where  a  will  is 
drawn  for  a  testatrix  by  an  attorney,  the  word  "residue,"  as  used 
in  the  instrument,  will  be   taken  technically,  and  no  resort  can  be 


608  Index, 

had  to  artificial  aid  in  its  interpretation  when  natural  reason  and 
the  circumstances  of  its  insertion  make  clear  its  meaning. — Estate 
of  Scott,  368, 

9.  Supplying  Defects  by  Implication. 

Will — Supplying  Defects  by  Implication, — When,  from  the  whole 
will,  the  court  can  determine  that  the  testator  necessarily  intended 
an  interest  to  be  given,  which  is  not  bequeathed  by  express  and 
formal  words,  the  court  should  supply  the  defect  by  implication,  and 
so  mold  the  testator's  language  as  to  carry  into  eifect,  as  far  as  pos- 
sible, the  intention  which  he  has  in  the  whole  will  sufficiently  de- 
clared.— Estate   of  Maxwell,   145. 

10,  Unreasonableness  of  Will, 

Will — Unreasonableness  does  not  Vitiate. — The  will  of  one  having 
testamentary  capacity  cannot  be  avoided  because  unaccountably  con- 
trary to  the  common  sense  of  the  country.  If  not  contrary  to  the 
law,  it  stands  for  the  descent  of  his  property,  whether  his  reasons 
for  it  are  good  or  bad,  provided  they  are  his  own  reasons,  not  in- 
fluenced by  the  unlawful  influence  of  others. — Estate  of  Tiffany,  478. 

11,  Devises  in  Trust. 

Wills — Acceleration  of  Devise  When  Trust  Invalid, — If  a  devise 
is  limited  to  take  effect  upon  the  termination  of  a  trust  and  the 
trust  proves  invalid,  the  devisees  come  immediately  into  their  own. — 
Estate  of  Doe,  54. 

Wills — Devise  on  Termination  of  Trust. — A  devise  to  the  widow 
and  daughter  of  the  testator,  one-half  to  the  daughter  absolutely 
and  the  other  half  to  the  widow  for  life  with  remainder  to  the  daugh- 
ter, is  valid,  regardless  of  the  validity  of  a  devise  in  trust  of  an 
intermediate  or  precedent  estate. — Estate  of  Doe,  54. 

WiUs — Creation  of  Vested  Remainder, — The  devise  in  this  case  to 
the  widow  and  daughter  of  the  testator  upon  the  "termination  of 
the  trust"  is  held  to  be  a  devise  of  a  vested  remainder,  postponed 
in  possession  merely. — Estate  of  Doe,  54. 

12.  Eevocation  by  Codicil. 

Wills — Implied  Revocation  by  Codicil. — When  a  new  will  is  made 
in  the  form  of  a  codicil,  it  does  not  require  an  express  revocation  to 
make  the  intent  to  revoke  the  prior  will  clear;  it  is  sufficient  that 
the  intent  to  make  a  disposition  of  the  estate  in  the  new  instrument, 


Index.  609 

wMch   is   inconsistent   with   the  prior   gifts,   is   made   as   clear   as   the 
original. — Estate  of  Scott,  368. 

Wills — Revocation  by  Codicil  Which  Omits  Legatee. — In  this  case 
the  codicil  of  the  testatrix,  which  in  effect  was  a  new  will,  omitted 
one  of  the  residuary  legatees  named  in  the  original  will.  The  court 
found  that  the  codicil  was  inconsistent  and  irreconcilable  with,  and 
worked  the  revocation  of,  the  original  will  in  respect  to  this  be- 
quest, and  therefore  denied  the  right  of  the  legatee  to  participate  in 
the  distribution  of  the  residuum. — Estate  of  Scott,  368. 

See   Charitable  Bequests;    Contest   of  Will;     Homesteads,  5;     Undue 

Influence. 

Note. 

injustice  or  unnaturalness  of  will  as  affecting  its  validity,  532. 

construction  of  conflicting  clauses  in  will,  150. 

presumption   that   testator   intended   to   dispose   of   entire   estate, 

150. 
appointment   of   guardian   as   evidence   of   want    of   testamentary 

capacity,  404. 
acknowledgment  of  will  by  testator,  29. 
subscription  by  testator,  28. 

WILLS,  ATTESTATION  AND  WITNESSING. 

Note. 

object  and  purpose,  attestation,  24. 

olographic  wills,  441. 

subscription   and   attestation   distinguished,   25. 

necessity  of  witnesses,  26. 

number  of  witnesses  required,  26. 

substantial  conformity  with  the  law,  whether  sufficient,  27. 

subscription  by  testator,  28. 

acknowledgment  by  testator,  28. 

necessity  that  subscription  be  before  witnesses,  28. 

sufficiency  of  testator's  acknowledgment,  29. 

request  of  testator  to  witness,  31. 

publication   of   instrument   by   testator,   32. 

declaration  by  testator  of  character  of  instrument,  33. 

necessity  of  signing  attestation  by  witnesses,  36. 

mode  of  subscription  by  witness,  37. 

place  on  will  of  subscription  by  witness,  37. 

time  of  subscription  and  attestation  by  witness,  39. 

presence  of  testator,  necessity  and  purpose,  39. 

presence  of  testator,  what  amounts  to,  39. 

presence  in  case  of  clear  vision,  43. 

presence  in  case  of  obstructed  vision,  43. 

39 


610  Index. 

presence  in  case  of  inability  to  look  in  direction,  44. 
position  in  same  or  in  other  room,  presumption  therefrom,  44. 
acknowledgment  of  signature  by  witness  equivalent  to  presence, 

45. 
mutual  presence  of  witnesses,  45. 
knowledge  of  contents  of  will  by  witnesses,  46. 
attestation   clause,  47. 

order  of  execution  by  testator  and  by  witness,  48. 
order  of  publication  and  other  requisites,  50. 
order  of  request  to   witnesses  and   other  requisites,  50. 
mode  of  attestation,  50. 
mode  of  request  to  witnesses,  51. 
mode  of  publication,  51. 
testimony  of  attesting  witnesses,  51. 
evidence    outside    testimony    of    witness    to    prove    execution    of 

will,  51. 
opinion  of  witness  as  evidence,  52. 
declaration    of   witness   as    evidence,   53. 
attestation   clavise  as  evidence,   53. 

WILLS,  EXECUTION  OF  OLOGRAPHS. 

Note. 

definition  of  olographs,  432. 

statutory  requirements  must  be  complied  with  in  execution,  433. 

formal   requisites,   434. 

informal  writings,  433. 

directions  for  the  writing  of  a  will,  whether  may  of  themselves 

constitute  olograph,  434. 
letters,  olographs  in  form  of,  434. 

omission  of  statutory  requirements  in  execution  of  olographs,  435. 
wills  olographic  in  part  and  attested  in  part,  436. 
incorporation  of  extrinsic  writings  by  reference,  437. 
date  of  olographs,  necessity  for,  437. 
abbreviations  in  date,  438. 
sufficiency  of  dating,  438. 
place  where  date  must  be  written,  438. 
signature  of  testator,  necessity  for,  439. 
signature  of  testator,  sufficiency  of,  439. 
signature  of  testator,  place  of,  439. 
witnessing  and  attesting,  necessity  for,  441. 
attestation  clause,  effect  of,  442. 
place  where  will  was  lodged  or  found,  442. 

WITNESSES. 

Witness. — ^A  Court  is  not  Warranted  in  Imputing  Want  of  Veracity 

to  a  witness,  unless  it  appears  that   willful  falsehood  has  been   told. 
Estate  of  McDougal,  456. 


Index.  611 

A  Witness  False  in  One  Part  of  His  Testimony  is  to  be  Distrusted, 

but  the  court  should  be  satisfied  that  the  witness  has  testified  falsely, 
and  may  discriminate  between  distrust  and  utter  rejection  of  tes- 
timony.— Estate  of  McDougal,  456. 

Witnesses — Manner  of  Testing  Credibility. — Each  witness  is  a  man 
or  woman  to  be  treated  as  an  individual,  a  moral  unit,  tested  for 
integrity  and  veracity  on  his  merits  or  her  title  to  credit  by  the  in- 
herent and  extrinsic  elements  of  belief,  or  the  circumstantial  criteria 
of  credibility.  These  are  the  only  considerations  for  the  court  in 
weighing  evidence. — Estate  of  Scott,  271. 

Witnesses — Credibility  as  Affected  by  Station  in  Life. — Persons 
employed  in  domestic  service  and  other  categories  of  honest  labor 
are  entitled,  as  witnesses,  to  credence  equally  with  those  who  plume 
themselves  on  their  higher  level,  affecting  to  look  down  on  those 
who  work  for  wages  as  inferior.  Before  the  law  there  is  no  such 
distinction,  and  in  courts  of  justice  all  must  be  co-ordinated,  irre- 
spective of  the  accidents  of  artificial  and  conventional  social  rela- 
tions.—Estate  of  Scott,  271. 

See   Wills,   4. 

WITNESSES  TO  WILL. 
See  Wills,  Attestation  and  Witnessing. 

WORDS  AND  PHRASES. 

"Surviving  Wife"  and  "Widow,"  93. 
"Improvidence"  and  "Want  of  integrity,"  206. 
"Insane"    and   "Incompetent"    distinguished,   380. 
■  ' '  Wardrobe, ' '  252. 
"Residue"  or  "Residuum,"  368. 
"Ornaments,"  252. 


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